Los Angeles, California
August 12, 2024
(Today’s Date)
March 31, 2021
(Original Date)
*Denotes a change in the original blog, either addition or deletion
**UPDATE (Denotes NEW information or material added after publishing of the original blog)
This blog is submitted and contributed as part of the War on Racial Discrimination in California (and the United States)
Two days ago, the trial of Derek Chauvin, a white male defendant, for the murder of George Floyd, a black man, began in Minneapolis, Minnesota. Another “I can’t breathe” case; the jury will have a heavy burden on its shoulders. In deciding the case, the jury , in large part, will decide the fate of the country in respect to future race relations and systemic racism. The jury’s decision will help establish how far we have come and how far we have to go in furthering good race relations and defeating systemic racism. Those jurors old enough to have experienced the Rodney King trials and the outcome of those trials, i.e., the riots, together with the 2020 Racial Justice Movement , should, for the sake of the country, keep those matters in mind, in deciding whether Chauvin and the other officers are guilty, and they are, of the charges against them.
I agree with Ben Crump, attorney for the Floyd family, that , aside from the racial considerations involved with the case, this is an easy case. If the case is decided strictly on the facts, law, and evidence of the case, it is an easy case. The only thing needed is the videotape with Chauvin’s knee on George Floyd’s neck for 9 minutes and 29 seconds, with two other officers’ hands on other parts of Floyd’s body, i.e., his torso and/or legs, holding George’s body down at the same time, and a medical expert with the proper medical diagnosis. All elements for conviction for second degree murder, third degree murder, and manslaughter are met for ALL THREE officers with hands on George’s body, holding him down. Chauvin just had his knee on the most vital part of George’s body contributing to his death. The only officer who could TRY to escape second degree murder charges (and he succeeded) is the fourth officer, Tou Thao , who was directing the crowd observing the murder to stay back. And I say “try” for Thao because there are facts surrounding him that could support a second degree murder charge. But, all of the officers, including Thao, should have been charged with direct crimes, not with any aiding and abetting offenses.
OPENING STATEMENTS
The State : Attorney Jerry W. Blackwell, a Black lawyer, was impressive. I believe he did an excellent job. He laid out his case well, as to what the State intended to prove, with a mix of cliches to emphasize certain points. He made me proud, as a Black man and Black lawyer. For instance, he said although the police must sometimes make split second decisions (which might cause them to error), in this case, there were “479 seconds (number of seconds Chauvin had his knee on Floyd’s neck) , and not a split second among them”. And he said, even after George didn’t have a pulse, Chauvin “does not let up and does not get up”.
*Finally, he said George “died one breath at a time” and the 911 dispatcher “called the police ON the police”. He appears to be a low-key Johnnie Cochran.
The Defense : Attorney Eric Nelson, a white lawyer. I believe this lawyer did as well as he could do with what he has to work with. He argued that there will be evidence that George had drugs in his system, and the drugs contributed to his death. He also argued that the police were being interfered with by the crowd who was yelling and stopping the police from rendering proper care to Floyd. And, he will rely on a cause of death set forth by the medical examiner, “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression”.
More next time.
UPDATE—April 13, 2021
THE MURDER OF DAUNTE WRIGHT IN MINNESOTA : EVEN IF IT WAS AN ACCIDENT, IT’S STILL MURDER, ESPECIALLY IN MINNESOTA
Another murder of a Black man by police in Minnesota. This time it was Daunte Wright , a 20 year old young man. According to the police, it was an accident. It was a police stop automobile shooting. The officer doing the shooting was a 26 year veteran police officer, a white female. The shooting occurred on Sunday. The police version of the shooting is that the officer, Kim Potter, intended to use her Taser gun instead of her actual revolver when shooting Wright. As of this writing, Potter, as well as the police chief of Brooklyn Center, Tim Gannon, have resigned. Further, Potter has now been charged with 2nd Degree Manslaughter, with a maximum 10 year prison sentence.
It’s a positive thing, and a sign of a little progress, just a little, that charges were brought so rapidly against a police officer in a fatal shooting by a white officer of a black man. This was brought about by the murder of George Floyd and the 2020 Racial Justice Movement. Nevertheless, the charge should be 2nd degree murder, especially in Minnesota, because Minnesota has , like the Derek Chauvin charge in Floyd’s case, an “unintentional” murder charge. So, even if the shooting was an accident or mistake as Potter claims, it still was an unintentional murder, with the predicate offense being an assault and battery. Some say the charge is akin to felony murder, but it’s different. In any event, whatever view one takes of second degree murder in Minnesota, Potter should be charged with second degree murder. The fact that she has not been so charged, thusfar, shows that we still have quite a ways to go in reaching equal treatment and equal justice between black and white people. But, initially, Chauvin was charged with manslaughter also. So, let’s see what happens.
It’s telling that the State charged Chauvin with an unintentional murder, when clearly the evidence indicated an intentional one, and now, they are charging Potter with manslaughter, when clearly the evidence, even at this stage, points to a 2nd degree murder charge. Why ? Because Potter had no justification for using either the gun or the Taser under the circumstances. At most, *(material deleted) the police could have physically attempted to pull Wright out of the car. At least, the police could have simply given chase. Or, they could have simply noted the license plate number and went to his home, since Wright purportedly had a warrant out for his arrest. I doubt if Potter would have taken this action (pulling for either a gun or a Taser) if Wright wasn’t Black. She was simply operating out of the indifference to or devaluation of a black life, likely operating out of fear, in part, and based on racism.
*Potter was arrested and charged. She is now out on bail. And, there has been protests or demonstrations about Wright’s killing everyday since the shooting; and, there has been press conferences involving family members of both the Wright and George Floyd families, and attorney Ben Crump, who represents both families. Also, at one conference, the Reverend Al Sharpton also appeared.
More next time.
UPDATE—April 17, 2021
THE MURDER OF 13-YEAR OLD ADAM TOLEDO : THIS TIME, BASED ON THE VIDEO, IT IS CLEARLY FIRST DEGREE MURDER : THESE MURDERS MUST STOP!
Chicago police has now killed a 13 year old Latino boy that it claims, at most, according to the video, was possessing a gun. The officer, Eric Stillman, based on the video, cannot claim the boy had a gun in his hand and was attempting to use it against the officer. At most, he can only claim that he thought the boy was in possession of a gun. And, clearly, that’s not good enough. But, that’s the officer’s only hope of any kind of defense against a murder charge. The videotape is enough to charge the officer with murder. It would be enough to charge the average citizen, and it’s enough to charge Stillman.
The only thing that’s going to stop these killings is for the police officers to pay the price for de-valuing the lives of black and brown people : life and life without parole, after swift arrest, charging, and trial. Even if there must be new legislation to assure that swift action is taken. Like in the George Floyd case , the video speaks for itself. “Hands up, don’t shoot !”
*I have now read an article by the L.A. Times regarding Adam, and it’s view of the videotape and what is depicted mirrors my view. So that’s at least one other entity which has viewed the video and has the same interpretation that I do. Thus, I believe, based on the videotape, alone, the officer should be arrested and charged, as any other citizen would be. Immediately.
UPDATE—April 18, 2021
THE GEORGE FLOYD MURDER TRIAL
The State’s Case
The State has put on a strong case. It has produced several “use of force” experts which have generally found that defendant Chauvin’s conduct in continuing to press his knee on George Floyd’s neck, shoulder, or back area was excessive. In fact, one expert characterize Chauvin’s conduct as “uncalled” for.
The State’s medical experts were phenomenal . They all generally found that George Floyd died of a lack of oxygen or low oxygen, which caused brain damage and the heart to stop , or cardiopulmonary arrest and asphyxiation or a death where both the heart and lungs stopped functioning, caused by subdual
restraint and neck compression. The State realizes that it has a heavy burden and that more is better than less, even if it does appear to be piling on. READERS : Above I stated that this is an easy case and all that is needed is the videotape and an expert “with the proper diagnosis”. Well, the State has now produced those experts, with a diagnosis of loss of oxygen or asphyxiation as the cause of death. The State’s Chief Medical Examiner was not clear or decisive in his diagnosis as to loss of oxygen or asphyxiation as the cause of death, but the State’s other experts, especially Dr. Martin Tobin, made it clear that the cause of George Floyd’s death was a loss of oxygen or asphyxiation.
The Defense
In my opinion, because of the videotape and the State’s medical experts regarding cause of death, the defense has no legitimate defense. It would be different without the videotape. Without the video, the defense’s asserted defenses would be more forceful, and admittedly, could create reasonable doubt. With the video, no defense. But, the defense did do a good job under the circumstances. Its last witness, Dr. David Fowler, without the video, likely would have created reasonable doubt with his conclusion that drugs contributed to Floyd’s cardiac arrest, and that Chauvin’s knee did not affect the structural parts of the neck or the airway, which is in the front of the neck. Fowler also found that carbon monoxide contributed to Floyd’s death. The defense also presented a use of force expert who supported its case. For instance, one use of force testified that Chauvin acted reasonably in subduing Floyd. Again, without the video, it would likely create reasonable doubt. With the video, unbelievable .
NOTE : The State’s experts disagreed with the defense’s experts, and generally found that drugs or a heart problem did not cause Floyd’s death.
Next, closing arguments.
UPDATE—April 19, 2021
THE GEORGE FLOYD MURDER TRIAL : CLOSING ARGUMENTS
The State
The State’s Opening-Closing was not that good. In fact, my overall grade for it was a C. It was going to be a C- , but, the argument improved near the end. First of all, I think Jerry Blackwell should have performed the entire closing. I question the decision-maker, who made the decision to assign the opening to the white prosecutor rather than to Blackwell. Blackwell is simply a better orator in arguing to the jury than Steve Schleicher, who gave the opening. Schleicher was good in examining witnesses, he laid good foundations in preparing witnesses for the ultimate testimony that was being sought. But, his opening lacked emotion until near the end. He began his presentation with the style of a professor in a classroom, lacking emotion. It was a little boring. For example, he said something about one of the witnesses’ shoes. He said the witness’ shoes were shining, and he went on to make some comment about the shoes. That witness was Black. Schleicher is white. What did that have to do with the case ? He eventually got around to talking about the case, and he made some good points that I can’t specifically recall, except he made some remark about the 9 year old bystander girl in the case, even at her age, being able to understand something was wrong or that a wrong was committed. And , he said “he (Chauvin) knew better, he just didn’t do better”. Again, I give the opening prosecutor a C. The State did not play the indispensable video in opening. NOTE : I don’t mean to imply that Schleicher did not make any good points, because he did, and at least one commentator said he did a good job. But, for me, his delivery did not keep my attention, so I could not get the full impact of his argument.
The Defense.
The defense’s closing was better than the State’s opening-closing. I’d give the defense, especially with what counsel had to work with, a B- . It was a long closing for the defense, over two hours, but, overall, he was more effective in trying to convince the jury that there was reasonable doubt. And, because the prosecutor DID NOT play the crucial video showing Chauvin with his knee on Floyd’s neck, it helped strengthened the defense’s argument. The defense attorney, Eric Nelson, argued the same things he argued during trial, e.g., that it was drugs and a heart problem that were the major contributors to Floyd’s death. However, in closing, he went a step further. He said the State experts , and their testimony, who found otherwise, were unbelievable. That is, he argued that it was unbelievable that the drugs in Floyd’s system, together with Floyd’s heart condition and possible gas omissions did not contribute to Floyd’s death, despite what the State’s experts said. However, Nelson hurt his case by playing part of the video, which I believe helps the prosecution. One part of the video that he played shows Floyd with Chauvin’s knee on his neck. He showed the video to make another point, but the jurors’ eyes had to be on Chauvin’s knee on the neck. Nelson had a better delivery than the prosecutor. Nelson would have earned a B, but for use of the video, which hurt his case more than it helped it.
State Rebuttal
Jerry Blackwell conducted the rebuttal. That’s one plus from the outset. However, in the end, Blackwell lost a point as well. He may have earned an A-, but, as it stands, it was a B+ . Blackwell started off by telling the jury that with all the witnesses who were called, there was one more, the jury itself. He said the jury was the (expert) witness of common sense. Blackwell made up for some of the prosecution’s case that was lacking in the opening. He said Chauvin didn’t get off of Floyd, even when the EMT’s arrived. He said Floyd experienced deadly force, and Chauvin used it. And, Floyd was losing his life, one breath at a time. He said it’s “in your custody is in your care“, it’s not “in your custody, I don’t care”. He called the bystanders who tried to save Floyd’s life “a bouquet of humanity”. He said the bystanders were a symbol of what it means to respect the badge, because they wanted to help Floyd, but because they respected the badge, they couldn’t help, but, they called the police “on the police”. He emphasized that all of the experts, including the defense experts, referred to a pulmonologist, and it was the State that presented the pulmonologist expert witness , Dr. Martin Tobin. Finally, he said that even when Floyd was not breathing anymore, Chauvin still would not “let up or get up”. I think he generally addressed and rebutted the defense’s continuous reliance on drugs and Floyd’s bad heart as causing Floyd’s death. But, Blackwell , like Schleicher, DID NOT PLAY THE VIDEO, and that’s what caused Blackwell to lose a point. So, the State did not play the video in their entire closing argument. See, infra.
I think the State, overall, presented a good argument .
COMMENT : I think it was a SIGNIFICANT AND/OR CRUCIAL MISTAKE for the State NOT to play the VIDEO in its closing argument. It makes the defense’s argument and case STRONGER. It turns an easy case for the State into a difficult one. I don’t know who made the decision not to play the video, but whoever did, it was a significant error. That is the State’s BEST EVIDENCE. It speaks for itself. The State’s case has now been compromised. Now, the State must rely on a juror to request the video.
Even the DEFENSE played parts of the video in its closing statement. So, how could the State not play the video in its closing ? It SMELLS, with a very BAD ODOR. The Floyd family should demand an answer from the State.
THE JURY IS NOW DELIBERATING.
More next time.
UPDATE—April 20, 2021 Today is George Floyd’s Day!
THE GEORGE FLOYD MURDER VERDICT : GUILTY, ON ALL COUNTS
2nd DEGREE MURDER, 3rd DEGREE MURDER, AND 2nd DEGREE MANSLAUGHTER
THANK YOU, *LADIES AND GENTLEMEN OF THE JURY. THE COUNTRY NEEDED THIS. I HOPE THIS IS A NEW BEGINNING FOR THE COUNTRY. THIS MUST BE A NEW BEGINNING. I THANK THE JURY AGAIN, AND HOPE, THAT IN ADDITION TO THE 2020 RACIAL JUSTICE MOVEMENT, WE, AS A COUNTRY , ARE ON A NEW PATH TOWARDS EQUAL JUSTICE AND EQUAL RIGHTS FOR ALL. WE SHALL SEE! REST IN PEACE, GEORGE. YOUR DEATH WILL NOT BE IN VAIN.
*NOTE : The answer to the question posed by the title of this blog is YES! I believe the jury learned a lesson from the Rodney King trials and the 2020 Racial Justice Movement. Again, I hope this is a new beginning towards racial justice for all.
*The fact that the jury came back with a verdict so quickly today shows two things : (1) It was an easy case (still based on the video—whether it was played in the jury room or not), and (2) the jury was a fair and impartial one, which is not always the case.
UPDATE—April 29, 2021
THE GEORGE FLOYD MURDER VERDICT (DEREK CHAUVIN), AS MUCH AS I HAD HOPED IT WOULD , APPARENTLY THE VERDICT HAS HAD LITTLE IMPACT ON WHITE OFFICERS MURDERING BLACK AND LATINO MEN. BUT, WE CAN STILL HOPE THAT , AT LEAST, THE VERDICT CAN CONTINUE TO PROMOTE CHANGE IN THE SPEED IN WHICH OFFICERS ARE CHARGED AFTER COMMITTING THE KILLINGS OF BLACK AND BROWN MEN WITHOUT JUST CAUSE OR WITH QUESTIONABLE CAUSE.
The swift charging of Officer Kim Potter of the Brooklyn Center police with manslaughter, for the killing of Daunte Wright , provides some hope that these cases will be swiftly scrutinized and assessed for criminal charges in future cases, and a decision made, even if the officers are not charged. But then, this might only be happening in Minnesota. Again, I hope not. All we can do is hope at this point.
On the other hand, the killing of Andrew Brown of Elizabeth City, N.C., and Mario Gonzalez of Alameda, CA, shows that the George Floyd verdict has done nothing to stop the taking of black and brown lives by white police officers. The systemic racism persists. Brown, apparently, was shot in the back of the head by police, after police claim that he was in a vehicle and the vehicle “made contact” with an officer. The Gonzalez case happened here on the West Coast, in the Bay Area, and the deadly facts are similar to those of the Floyd case, that is , the police, in subduing Gonzalez, placed a knee on Gonzalez’s back and/or shoulder, causing Gonzalez to lose oxygen, and eventually die. And, it is likely that the police officers’ position may take on similar defenses as Chauvin did, e.g., drugs and “excited delirium”.
Let’s see what happens in terms of speed of charging or not charging. That will tell us something about progress brought on by the Floyd decision here in CALIFORNIA. I think the Gonzalez case warrants immediate charging. What will our new Attorney General do ? Will Black Lives Matter get involved ? I think it should, on behalf of Gonzalez and Floyd and the Movement. But, with the Brown case, I would have to wait and see the body cam video before attempting to make a determination as to charging the officers involved. That shows the value of the videos in these cases. And that’s likely why the release of the videos in the Brown case is being held up. The judge’s decision refusing to release the videos publicly should be appealed, based on the family’s right to see the videos , especially where it appears that the family has not gotten to see the entire video or videos. The family first has to see the entire video. They may have to go to federal court to obtain the video immediately.
Let’s see what happens.
UPDATE—May 1, 2021
Black Lives Matter can also add the names of Christopher Eisinger, a Black man killed by Anaheim police, who’s last words, according to news accounts, was “I can’t breathe”, and one Joseph Perez, perhaps Latino, who died in the custody of Fresno police officers and sheriff deputies, and who , according to news accounts, “cried out ‘I can’t breathe’ in the moments before he died”, to the name of Mario Gonzalez. And, Mr. Perez’s family’s attorneys says he died of “compression asphyxia”, the same or similar cause of death suffered by George Floyd.
Also, it appears that our new Attorney General, Rob Bonta, should get involved in these cases, like the Minnesota Attorney General got involved in the Floyd and Daunte Wright cases in Minnesota. And, from the way it’s looking, A.G. Bonta will likely be hearing from me as well, regarding another matter.
UPDATE—May 25, 2021 ANNIVERSARY OF THE DEATH OF GEORGE FLOYD
THE FEDERAL INDICTMENT OF THE FOUR POLICE OFFICERS INVOLVED IN GEORGE FLOYD’S MURDER IS ONE OF THE MOST SIGNIFICANT CHANGES PRODUCED BY GEORGE FLOYD’S DEATH, WHICH DEMONSTRATES TWO IMPORTANT THINGS : (1) GEORGE FLOYD DID NOT DIE IN VAIN, AND (2) THE BIDEN-GARLAND JUSTICE DEPARTMENT IS FACIALLY DEMONSTRATING AN IMPORTANT CHANGE FROM THE TRUMP AND OBAMA ADMINISTRATIONS : IT WILL PROSECUTE CIVIL RIGHTS CASES INVOLVING POLICE KILLINGS OF BLACK MEN. HOPEFULLY, IT’S NOT AN ABERRATION. WE SHALL SEE.
On the anniversary of George Floyd’s death, it’s important that we reflect on what affect his death and the 2020 Racial Justice Movement has had on the treatment of Black males (and females—and others, but Black males have suffered the most mistreatment in ALL ways) by mostly white police officers in law enforcement-citizen encounters. One such effect is the U.S. Justice Department investigating and prosecuting white police officers in the murders of Black men, i.e., George Floyd. It has not been done in the past. Not for Eric Garner, not for Michael Brown, not for Elijah McClain, *not for Philando Castile, not for Laquan McDonald, not for Walter Scott, and many others, e.g., Breonna Taylor. So, it’s a BIG THING that the Justice Department obtained indictments for the police officers, or otherwise charged them, in George Floyd’s murder.
Yes, it followed state court charges and a conviction for murder, but there has been other officers convicted of killing Black men, although few, e.g., Chicago, but the Justice Department didn’t follow with federal civil rights charges. In most cases, the Justice Department will say, “we are conducting a federal investigation”, but nothing is ever done. That’s in most, if not all , of the cases. After the Rodney King case (which didn’t involve a killing), when is the last time the Justice Department has brought civil rights actions against a white police officer for killing a Black man ? Maybe the L.A. Times will let us know. Again, the Justice Department investigates, but, it never actually bring charges. So, George Floyd’s death has at least triggered a change by the Justice Department in at least one case. We can only HOPE that it’s just a beginning . For that is the only way we can try to stop the killings. And, we must give the Biden-Garland Administration credit where credit is due. And, credit is due. But, the real test , as to actual or real change, will be : Will the Justice Department bring a civil rights action against a white police officer who has killed or murdered a Black man, where the State has refused to prosecute the officer or officers for the killing ? We shall see.
Thanks, President (Joe) Biden and Attorney General (Merrick) Garland. We have a long ways to go, but, the federal indictments of the George Floyd murderers is a start.
UPDATE—June 26, 2021
THE POLICE (SHERIFF) BEATING OF CHRISTOPHER BAILEY : ANOTHER RODNEY KING CASE (RODNEY KING II) : JUST ABSENT THE VIDEO OF THE BEATING ITSELF ; WILL D.A. GEORGE GASCON PROSECUTE THE CASE (BRING CHARGES) ?
In May of last year, apparently, there was a sheriff deputy beating of the Black Christopher Bailey, 37, in Inglewood, CA. Based on news reports, the beating appears to be stunningly similar to the Rodney King beating. That is, there were multiple deputies involved, in RK I, there were four deputies involved, here, in RK II, there was a combined six deputies (two originally, with 4 more joining in later) involved. Both King and Bailey were beaten as they lay on the ground. In both cases, RK I and II, the Black males (another commonality) suffered multiple and serious injuries as a result of the beating, such as broken bones and teeth, facial fractures, multiple bruises and lacerations, and multiple surgeries, in Bailey’s case, “to repair fractures to his face, including his eye sockets and nose”.
And, clearly, the post-beating photos of the faces of both King and Bailey are almost identical. Even though at this time, apparently, there are no videos of the actual beating by the officers, the post-beating photos of Bailey, together with Bailey’s testimony, and with expert testimony on what could have caused the injuries, with the possible use of the King case in some way, is enough to bring charges against the officers or deputies involved for use of excessive force. The videotaped photos of Bailey’s face right after the beating (which I have seen) are very telling. It or they speak for themselves as to the severity of the beating. I don’t care WHAT Bailey did, in terms of a traffic violation, or even being combative, it did not warrant that kind of beating.
So, now, will Gascon charge the officers criminally for Bailey’s beating ? Will a Black male’s testimony, *together with the medical evidence, be enough, without a George Holliday videotape, be enough to bring charges against the deputies? It should be.
We’ll see.
DEREK CHAUVIN’S SENTENCE : 22.5 YEARS IN PRISON
Yesterday, Derek Chauvin was sentence to 22.5 years in prison by judge Peter Cahill for the murder of George Floyd. The sentence was less than the prosecution sought, 30 years, but much more than the defense sought, probation (which I think is ridiculous, and reflects on the credibility of Chauvin’s counsel—whom I thought did a good job under the circumstances, prior to this defense sentencing request). I think the judge was a fair judge during the trial, and, under the circumstances, issued a fair sentence. He was limited in some ways by the state’s *maximum sentence allowed (40 years) and sentencing guidelines (12.5 years), and in other ways by a notion of fairness to both the government and the defense, and to the Floyd family and the Chauvin family. Would another judge have issued another sentence ? Possibly, but I would not say probably. Some judges would have issued a lesser sentence, probably most, while a few would have issued a greater penalty. I believe there would be more judges who would issue a lesser penalty than those who would issue a greater penalty.
Personally, I think Chauvin should have gotten life, with the possibility of parole, or 25 years to life. But, judge Cahill, under Minnesota law, could not sentence him to either of those two options. So, again, I believe judge Cahill issued a fair sentence, under the circumstances.
UPDATE—November 28, 2021
THE MURDER OF AHMAUD AUBREY : FROM THE MURDER OF GEORGE FLOYD, AND THE 2020 RACIAL JUSTICE MOVEMENT, TO THE MURDER OF AHMAUD ARBERY : A REVELATION OF STEADY PROGRESS TOWARDS RACIAL JUSTICE AND EQUALITY.
A nearly all-white jury, and for all intent and purposes, an all-white jury (with only 1 non-white person, a Black man, on the jury) found three white men, Gregory McMichael, 65, his son , Travis McMichael, 35, and their neighbor, William “Roddie” Bryan Jr., 52, guilty of malice murder (Travis McMichael only), and felony murder (all three) for the killing of Ahmaud Arbery, a 25-year old Black man, who was shot and killed while jogging in the streets of Brunswick, Georgia, a Deep South city and state.
Readers, I am not going to get into all the deep details of the case, for you can get that from sources where the writers are paid to produce that information (in case any of you didn’t know it, I do not get paid for producing my blogs).
The main point of this blogpost is to state that the all-white Glynn County, Georgia jury’s decision represents a portion of the steady progress towards racial justice and equality in this country, especially for Black people. And what is that progress ? Not only did an all-white jury find three white men guilty of murdering a Black man, but, and perhaps more importantly than the state convictions, the FEDERAL JUSTICE DEPARTMENT has sought and obtained a FEDERAL INDICTMENT of the white men (for crimes associated with the killing of a Black man) on hate crime charges, e.g., interference with civil rights, EVEN THOUGH THERE HAS ALREADY BEEN A STATE CONVICTION OF THE MEN FOR MURDER. Usually, if the Feds get involved at all, which is RARE, it will be AFTER and because the STATE has refused to prosecute an individual or individuals who the Feds believe should have been prosecuted, e.g., the Rodney King case.
But , now, in contemporary times, beginning with the murder of George Floyd, a Black man , and the conviction of Derek Chauvin, a white man, for murder, the Federal Justice Department has for the SECOND time sought and obtained an indictment of white men the state has ALREADY convicted for murder (which, in the case of the McMichaels and Bryan, means a minimum of life in prison). THIS IS PROGRESS in the Movement towards racial justice and equality for all, but, especially, for Black people in America. I am hopeful that this marks the beginning of a NEW Justice Department, not just for the protection of Black civil rights involving murder, but also, for the protection of Black civil rights involving matters other than murder, e.g., other criminal justice rights and property rights.
BRIEF COMMENTS ON THE ARBERY TRIAL AND CONVICTIONS
I was able to view some parts of the trial, e.g., the testimony of Travis McMichael and closing arguments.
First, and most importantly, the VIDEO of the Arbery encounter with the McMichaels, was ABSOLUTELY outcome-determinative. Without the video, there would not have been any murder convictions, even with what appears to be a fair and impartial jury. There simply would not have been enough evidence of a murder for a jury to find the defendants guilty beyond a reasonable doubt. The defendants’ testimony, and self defense defense, would have created reasonable doubt. There would not have been any witnesses on Arbery’s behalf who could have created “beyond a reasonable doubt”. And, of course, without the videotape, the public would not have known of the Arbery-McMichaels encounter, and therefore, could not have provided any public pressure for justice or fairness. And, the Arbery case would have simply been another un-prosecuted case of a Black murder. Thus, no video, no murder conviction.
Second, the lead prosecutor , Linda Dunikoski, was very good to excellent. She laid out her case well. She went through each count or charge and explained through the facts, law, and evidence why the defendants were guilty of the crimes they had been charged with. And she explained why self-defense could not be a defense in the case. It’s clear that one of the three prosecutors who were interviewed after the verdicts should not have been assigned the lead role. He, a white male, was asked if he thought race was an issue in the case. He never answered the question, and provided some explanation trying to say that the prosecution was based on the facts and evidence of the case, not race. Dunikoski answered in the affirmative, that race was an issue. And, the other Black, female prosecutor, indicated that the McMichaels would not have shot Arbery if he was white, *or not a person of color, suggesting that race was an issue.
Third, “Roddie” Bryan. Unlike with the McMichaels * (“trapped like a rat” and mentioned evidence, not presented during trial, of use of a racial slur by Travis) , I have some reservations about Bryan’s culpability for the murder. Although his lawyer, Kevin Gough, was a good lawyer (as evidenced, in part, by the argument notes he orderly-prepared) he, Bryan, needed a VERY good lawyer. Even though prosecutor Dunikoski made her case for murder, and she was clearly supported by the facts, evidence, and law, *especially felony murder law, I believe a very good defense lawyer could have made an argument based on the same facts *and evidence that were presented in the case that would have created reasonable doubt, sufficient for an acquittal of Bryan on all charges. Gough was good, and I believe many good lawyers would have argued what he argued. But, a very good lawyer would have argued what he argued, and more. And, Gough’s motions for mistrials certainly was not the “more” that was needed, *e.g., for Al Sharpton being in the courtroom audience. And, since Gough didn’t argue the “more” at trial, he likely cannot argue the “more” on appeal, because Dunikoski would not have had an opportunity to rebut the argument. *This is a case where a lawyer’s ARGUMENT was just as important or more important than the facts and evidence of the case. The necessary facts and evidence to produce an acquittal were present and presented to the jury. What was missing for Bryan was the necessary argument.
Finally, the judge, Superior Court Judge Timothy Walmsley. I believe that judge Walmsley was a fair judge, to both sides. One can tell that the court system chose the right judge to oversee the trial. The only reservation I have about the judge is based on his frank honesty regarding the jury selection process. The judge stated that he thought there was intentional discrimination during the jury selection process (apparently referring to the legal challenges by defense lawyers which resulted in eliminating jurors of color from sitting on the jury), but that there was nothing that he could do about it. I disagree. If a judge finds that a lawyer has used a challenge to eliminate a potential juror from the jury based on his or her race or color, there is something that the judge can do : allow the potential juror to be seated on the jury, finding that , even though the lawyer has provided a facially non-racial reason for the exclusion, the reason is not sufficient to exclude the potential juror from the jury, i.e., the real reason for the exclusion is race. And, let the prosecution or defense take the matter up on appeal. But, the judge can make that decision if he or she truly believes that the challenge is based on race. The judge makes the final decision as to whether the challenge is based on race or not. I understand that a judge might not wish to make a ruling that he believes might be reversed on appeal, but, when the issue involves racial discrimination, he should err on the side of prohibiting racial discrimination, even if reversal might be a possibility. Here, judge Walmsley, to his credit, truly believed that there was discrimination, therefore, he should have proceeded accordingly.
THE BOTTOMLINE : The prosecution put on an excellent case, and proved beyond a reasonable doubt , with legal and legitimate evidence (including the defendants’ own evidence, both testimonial, video, and other) that all three defendants, Gregory and Travis McMichael and William “Roddie” Bryan, white men, murdered Ahmaud Arbery, a Black man, while Arbery was out jogging in the neighborhood. Even though the jury was nearly all-white (with one Black man), it proved to be a fair and impartial jury, who found all defendants guilty of murder and other offenses. It was a significant decision ( because it followed the decision in the murder of George Floyd and it followed the 2020 Racial Justice Movement) which established a “new” beginning in the fight for racial justice and equality in the criminal justice system, and in all of society, as demonstrated by the Federal Justice Department , for the second time (including the George Floyd case) pursuing federal charges, including hate crime charges, against white defendants accused of murdering or otherwise harming Black citizens, *without pressure being put on it to do so.
This is progress in our fight for racial justice and equality in the United States of America.
**NOTE : REAL PROGRESS will be when the Justice Department indicts or seeks indictments for a white or non-Black defendant or defendants for violating a Black citizen’s civil rights, where a State has refused to prosecute the white or non-Black person or persons under State law, and there is clear evidence that the person or persons have violated federal criminal civil rights and/or other federal criminal law.
*SENTENCING : REINFORCEMENT OF THE CONTINUED PROGRESS WE ARE MAKING IN OUR STRUGGLE FOR RACIAL AND EQUAL JUSTICE
On January 7, 2022, Travis and Gregory McMichael we’re both sentenced to life in prison WITHOUT parole, and William Bryan was sentenced to life with the possibility of parole. Judge Timothy Walmsley interpreted certain statements made by Bryan as regret and remorse, and therefore, allowed Bryan an opportunity for parole. First of all, I was surprised by the sentences. I thought they all would receive life with parole. To me, the judge would only have giving them life without parole if the acts were as heinous as the acts in Emmet Till’s murder, which they were not. But, was it fair ? Yes. I think the judge was persuaded by the witness impact statements of Aubrey’s mother and father; in addition to the conduct of the defendants, e.g., turning their backs on Aubrey after he had been shot, and stating that Aubrey was “trapped like a rat”. A rat is a rodent or an animal, not a human being; *and judge Walmsley probably interpreted McMichael’s statement as admitting that he (McMichael) treated Aubrey, a human being, like, or as if , Aubrey was an animal (a wild animal), and not a human being, which Aubrey is.
*THE CONTINUED PROGRESS
When is the last time a WHITE judge in the Deep South , or anywhere else for that matter, has sentenced two white men to life without parole for killing a Black man ? And, especially, under the circumstances of this case, i.e., a struggle for a gun or rifle between a black man and white man. I know of no case myself. This was remarkable ! Even James Earl Ray, who was convicted for murdering Dr. Martin Luther King, Jr. was given parole, along with his 99 years , and this was premeditated murder. So ladies and gentlemen, this is PROGRESS in the struggle for racial justice and equality. I applaud and thank judge Walmsley for his progressive effort. He made it appear EASY, but, it wasn’t easy. Thank you, sir, for doing the right thing.
So why is it continued progress ? Because it started with an all-white (mostly white, but the same as all-white) jury in the Deep South convicting three white men of murdering a black man under circumstances that the same jury in Emmet Till’s day would have easily found all three defendants NOT GUILTY of ALL offenses (and this is what the McMichaels were counting on, based on the all-white jury—they, their lawyers, intentionally got rid of Black and/or other minority jurors with their jury challenges). Next, after an all-white jury convicted the defendants of felony murder , not first degree or premeditated murder, a white judge sentences the white men (for murdering a Black man) to life without parole. That act continued the progress towards equality (because if black men had killed a white man under the same circumstances, I believe the all-white jury would have found the same way; and I believe judge Walmsley would have sentenced the black defendants the same way as well).
So, regardless of what happens with the defendants’ federal hate crimes trial, it will not detract from the racial and equality progress made by the state trial, for the hate crimes trial is only superfluous. Yet, for the Federal Justice Department, it is progress as well.
UPDATE—December 29, 2021
FROM THE MURDER OF AHMAUD ARBERY TO THE MANSLAUGHTER OF DAUNTE WRIGHT: CONTINUED PROGRESS TOWARDS RACIAL JUSTICE IN THE CRIMINAL JUSTICE SYSTEM AND BEYOND
A mostly all-white jury, with 1 Black woman and 2 Asian American women, which is basically an all-white jury, found Kim Potter, the white former Minnesota local police officer, guilty of first degree and second degree manslaughter. As it turned out, the jury more easily found second degree manslaughter, and subsequently, with further deliberation and negotiation, the jury agreed on first degree manslaughter, as well.
Potter, 49, was charged with the killing of Daunte Wright, 20, during a traffic stop for an illegal object hanging on the rear-view mirror, an air-freshner, and expired registration . During the stop, Potter shot and killed Wright while she and two other officers were trying to make an arrest of Wright. Potter allegedly mistakenly used her service weapon (gun) instead of a Tazer (shock waves) when attempting to subdue Wright, while he was sitting in the driver’s seat and while the car was running (and apparently in the “park” mode). Somehow, after he was shot by Potter, Wright managed to put the car in the “drive” mode, and drove off, eventually, colliding with another vehicle holding two senior citizens, one of whom was injured in the accident. Wright was pronounced dead at the scene. The jury had to decide whether Potter’s conduct was reckless (first degree) or negligent (second degree) or neither (no guilt or liability for Wright’s death in attempting to arrest him). The jury found that Potter was guilty of both types of conduct.
What it came down to was this : Should Potter have used ANY force, other than physical force, to subdue Wright ? The answer : No. It was both reckless and negligent for Potter to use any force besides physical force to subdue Wright because of the potential for harm to others, i.e.,the other officers during the arrest and the senior citizens, one, who were ultimately hurt. This was especially true for the senior citizens, that is, what could have happened from using either a Tazer or a gun actually happened. The jury reached the right verdict. Honestly, I personally believed that the jury would convict Potter only of second degree manslaughter, because of the sympathy factor from an all-white jury.
General Comments
The VIDEO : As with the George Floyd trial and the Ahmaud Arbery trial, without the video, there would not have been a prosecution of Kim Potter. I doubt very seriously if there would have been a trial at all. There likely would not have been an arrest. There would NOT have been an arrest. The only evidence the Wright family would have had was the officers’ version of what happened. And does anyone believe the officers would have testified the same way that they did at trial WITHOUT THE VIDEO ? Do you believe their statements in reports would have been the same without the video ? This was another case where the video was ABSOLUTELY essential for the arrest, trial, and conviction of Kim Potter.
POLICE BODY CAMERAS : Likewise, this case also shows the importance of police body cameras. They should be REQUIRED of ALL police departments NATIONWIDE. There should be federal legislation requiring ALL police departments maintain body cameras as part of the equipment police persons maintain on their person or “bodies”, i.e., the same way that they maintain or carry guns.
The Prosecution Team : This prosecution team, unlike the superb prosecution team in the George Floyd case (mostly because of attorney Jerry Blackwell) was average or fair, but, no less. The video was a significant aid to the prosecution. They made several mis-steps. For instance, at one point, they asked an officer on the scene whether he pulled his gun, and the officer responded that he did not. But, the prosecution didn’t follow-up with, why not ? The officer likely would have had to state that he didn’t think the circumstances called for it.
The Defense Team : The defense was average or fair as well. It hurt its client in some ways, and was clearly appealing to the white jurors specifically, which likely had a reverse effect on the non-white jurors. For example, by charging Daunte Wright with being responsible for his own death. I believe the verdicts were fair and correct. In the end, defense counsel Earl Gray’s appeal to the white jurors BACKFIRED on him.
The Judge : Regina Chu : I believe judge Chu was fair to both sides. I was most impressed with her assertion after the verdicts were revealed that she wasn’t going to treat Potter’s case “any different” than any other case, when it came to remanding Potter to custody after the guilty verdicts. She likely basically was saying that most of the people undergoing similar trial proceedings are people of color, and likely poor, and they are not granted bond. So why should Potter be treated any differently because she is white, a former police officer, with sufficient funds to post bail ? Kudos to judge Chu.
Next, sentencing. I will comment on continued progress after sentencing.
*SENTENCING (2/18/22) : KIM POTTER : SENTENCED TO 24 MONTHS (2 YEARS) ; A STEP BACKWARD; REGRESS RATHER THAN PROGRESS ; EVEN THOUGH KATIE WRIGHT GAVE THE MOST MOVING WITNESS STATEMENT I HAVE EVER HEARD OR WITNESSED : SHE DESERVED BETTER
Kim Potter, the former Minnesota police officer, was sentenced to 2 years imprisonment, with 8 months served ON PAROLE (which means outside of prison). Judge Regina Chu sentenced Potter to below the presumptive sentence (which is just over 7 years, according to the sentencing guidelines). In fact, she meted out a downward departure from the sentencing guidelines, and there was no sustainable justification for it. At least, she should have sentenced Potter to the presumptive sentence, around 7 years. And, the main reason is : Potter was convicted of two counts or charges, first AND second degree manslaughter (for first degree, the max is 15 years, and for second degree, the max is 10 years). And, because of Minnesota law, she could only be sentenced on the greater or more serious charge, first degree manslaughter. Chu had to take that into consideration when handing down her sentence. Apparently, she didn’t. It was another case of de-valuation of a Black life. That is, *Daunte Wright’s life mattered.
While Chu expressed sympathy for Potter during Potter’s tear-filled remorseful statement, she didn’t duplicate that sympathy for Katie Wright, Daunte Wright’s mother, when Ms. Wright gave a compelling and powerful witness statement; in part, “Daunte Demetrius Wright , I will continue to fight in your name until driving while Black is no longer a death sentence.” Chu’s sentence detracted from the progress of the convictions. So, was the sentence fair ? Absolutely not. Was the judge fair in sentencing ? Absolutely not. Clearly, her sentence was biased in favor of Potter. *And, it is likely Potter and her counsel concluded that she might be. * REMEMBER, Potter CHOSE to have judge Chu sentence her, rather than the jury. Now, we see why. *Judge Chu’s sentence was as if Potter wasn’t convicted at all, or, as if Potter was convicted of some minor misdemeanor. Again, at minimum, for the 2 *FELONY convictions, Potter should have received the presumptive sentence of seven years, at least. *Moreover, Potter could have been charged with second degree murder.
THE CONTINUED PROGRESS
Even though the Minnesota Attorney General, Keith Ellison, apparently is not going to appeal the sentence, even though he can (he says he accepts the sentence) and even though Chu delivered an unfair sentence, the fact that Potter was prosecuted in the first place is still progress. Before George Floyd, she would NOT have been prosecuted, especially under the circumstances of her case. So, while we must continue our fight for fairness and equality in the criminal justice system, we must recognize and give credit to the progress made post-George Floyd and the 2020 Racial Justice Movement.
UPDATE—January 4, 2022
THE POLICE KILLING OF DANIEL ELENA-LOPEZ AND VALENTINA ORELLANA-PERALTA : IT’S AN EASY CALL : LED BY THE DAUNTE WRIGHT CASE, OFFICER JONES SHOULD BE CHARGED WITH SECOND DEGREE MURDER OR FIRST DEGREE MANSLAUGHTER FOR THE KILLING OF BOTH ELENA-LOPEZ AND ORELLANA-PERALTA
By now, many people should be aware that there was a L.A.P.D. police shooting on December 23rd at the Burlington clothing store in North Hollywood. Daniel Elena-Lopez (“Daniel”) apparently was creating a disturbance at the store, including assaulting at least one person with a chain and bike lock, causing the person, a woman, to bleed from the assault. After the police were summoned, with at least one caller wrongly stating that the man, Daniel, had a gun, the police showed up at the store to confront the man. There were several officers present during the confrontation, but, according to the L.A. Times, one William Dorsey Jones Jr. (“Jones”) proceeded to use a rifle to fire on Daniel , who, apparently, was moving away from Jones and the injured woman. Jones , in firing several rounds, ended up killing both Daniel and Valentina Orellana-Peralta (“Valentina”) , a 14-year old girl from Chile who was in a dressing room at the store. One of the bullets fired from the rifle went through a dressing room wall and struck Valentina, killing her. She died in her mother’s arms (her mother was in the dressing room with her at the time of the shooting).
Based on the Daunte Wright case, in Minnesota, where a jury found a police officer, Kim Potter, guilty of first and second degree manslaughter, this is or should be an easy call for District Attorney George Gascon to charge Jones with either second degree murder or first degree manslaughter. In the Wright case, Potter argued that the shooting and killing of Wright was an accident or mistake , i.e., that is, she meant to use a Tazer rather than a gun. But, her defense failed because she should not have used either. And, an expert so testified. Wright was unarmed. Jones cannot say that his use of the rifle was an accident or mistake, and Elena-Lopez was not armed with a weapon such as a gun or rifle that could have caused Jones harm from a distance. And, while Jones killing of Valentina was an accident, it was an accident that should not have happened.
Thus, there is sufficient probable cause to charge Jones with either second degree murder or first-degree manslaughter. And, based on Gascon charging the former Long Beach school safety officer, Eddie F. Gonzalez, 51, with murder, for the killing of Manuela “Mona” Rodriguez, 18, near Millikan High School,
Jones must be charged with murder as well. There is serious question whether Gonzalez should have been charged with murder as opposed to manslaughter, but, it is what it is. Gascon doesn’t need beyond the end of next week to charge Jones with second degree murder.
Gonzalez pursued Rodriguez after she had participated in a fight with a 15-year old and rode off in a vehicle, sitting in the passenger seat of the vehicle. Gonzalez apparently was concerned with resolving who was responsible for the fight, when Rodriguez took off in the car. Gonzalez fired a couple of shots at the vehicle as it drove off, and Rodriguez was hit with one of the shots. She was hospitalized for awhile, and was later taken off of life support.
In both cases, Gonzalez and Jones, there was a devaluation of human life when firing the weapons. Black and brown lives do matter, and sooner or later, hopefully sooner, law enforcement officers will realize that. Until they do, they must be prosecuted for snuffing out minority lives unnecessarily and without sufficient justification. If Gonzalez and Jones believe that their killings were justified, they can prove it at trial.
UPDATE—January 12, 2022
See above at the November 28, 2021 Update at ( * ) , after **Note, at end, regarding the Ahmaud Aubrey case.
UPDATE—January 26, 2022
THE GEORGE FLOYD-DEREK CHAUVIN FEDERAL CASE : THE ONLY WAY CHAUVIN’S CONVICTION IN FEDERAL COURT CAN HAVE ANY REAL MEANING IN TERMS OF JUSTICE FOR GEORGE FLOYD IS FOR THE JUDGE TO IMPLEMENT A MIXED SENTENCE : PART CONCURRENT AND PART CONSECUTIVE.
Now that Derek Chauvin has pleaded guilty to two federal charges related to the murder of George Floyd, the final step in the process is sentencing. The federal prosecutors have recommended a sentence of 20-25 years, to run CONCURRENTLY with his state sentence of 22 years. This would amount to NO sentence at all for the federal offenses. And, therefore, it would amount to no justice at all for George Floyd and the Floyd family for the federal offenses. Consequently, the federal conviction of Chauvin would be nothing more than a symbol without substance.
The only way for the sentencing judge to provide substance to the federal conviction is to order part of the 20 to 25 years to run concurrently and the other part to run CONSECUTIVELY. I suggest that it should be perhaps 13 years to run concurrently and 12 years to run consecutively. Remember, the prosecution can only offer a recommended sentence to the judge. It is the judge who makes the final decision as to the sentence allocated, regardless of the recommendation by the prosecutors. The judge must make his decision based on the totality of the circumstances, not just what the prosecutors have recommended based on a plea bargain. For instance, if Chauvin was convicted in Georgia, he would have been sentenced to life in prison, with or without parole, and probably, based on the Ahmaud Aubrey case, it would have been life without parole. The judge should consider that. While judges usually accept a prosecutor’s sentencing recommendation, I believe this case should be an exception to that practice, under the circumstances . Chauvin was only sentenced to 22 years in Minnesota. That, in my view, is insufficient for the type of murder committed against George Floyd. I believe Georgia’s sentencing scheme for murder is more appropriate. Therefore, I believe a fair sentence for Chauvin in his state trial should have been at least life, with parole, which would mean, per Georgia, a required 30 years to start. With a 12 year consecutive sentence, combined with the 22 year Minnesota sentence, Chauvin would then end up serving 34 years, with some years left to live his life after the sentence is served. And, it would still support his guilty plea, because without the guilty plea, he would stand to have the entire 20 to 25 years to run consecutively after a trial.
Thus, the mixed sentence would provide some semblance of justice and give some meaning to the federal prosecution and conviction of Derek Chauvin for George Floyd’s murder.
UPDATE—February 1, 2022 *A CONTRIBUTION TO BLACK HISTORY MONTH
THE BREONNA TAYLOR CASE : IF THE U.S. JUSTICE DEPARTMENT REALLY WANTS TO SHOW AND/OR DEMONSTRATE TO BLACK PEOPLE AND THE COUNTRY THAT THERE IS REAL PROGRESS (AFTER THE 2020 RACIAL JUSTICE MOVEMENT) IN THE JUSTICE DEPT’S PROSECUTION OF CIVIL RIGHTS CLAIMS INVOLVING THE KILLING OF BLACK PEOPLE AND OTHER PEOPLE OF COLOR BY STATE LAW ENFORCEMENT OFFICERS, IT WOULD PROSECUTE THE POLICE OFFICERS RESPONSIBLE FOR THE KILLING AND DEATH OF BREONNA TAYLOR, WHERE THE STATE OF KENTUCKY HAS REFUSED TO DO SO.
In Louisville, Kentucky, a trial has begun for certain of the police officers involved in the killing of Breonna Taylor (“Breonna”), a Black woman. Basically, Breonna was killed when police executed a “no-knock” warrant in pursuit of a drug dealer (and former boyfriend of Breonna) and there was an exchange of gunfire between Breonna’s then-current boyfriend and the police when the police broke into Breonna’s apartment pursuant to the warrant. However, this trial is not really for the killing of Breonna, rather, it is for the officers who shot in a neighbor of Breonna’s apartment, i.e., “firing his service weapon into Taylor’s neighbor’s apartment during the March 13, 2020 raid”. The officer who likely fired the shot that killed Breonna , Myles Cosgrove, is not on trial. And, the other officers involved in this firing the weapon trial are not being tried for Breonna’s killing or death, only for firing their weapons into a neighbor’s apartment. That is, they are being tried for harm done to the neighbor, but not for harm done to Breonna. *The police should have been charged with, at minimum, manslaughter (reckless conduct), and, at most, second degree murder and felony murder, by the State or Commonwealth of Kentucky.
IF EVER THERE WAS A CASE THAT THE U.S. JUSTICE DEPARTMENT WOULD PROSECUTE FOR THE KILLING OF A BLACK PERSON OR OTHER PERSON OF COLOR AFTER THE REFUSAL OF A STATE TO PROSECUTE THE POLICE OFFICERS RESPONSIBLE FOR THE KILLING, THIS IS IT.
While I have spoken of the progress I believe the country and the Justice Department is undergoing in terms of the protection and pursuance of civil rights of people of color, and especially, Black people, I have also noted that REAL PROGRESS by the Justice Department will best be demonstrated by the Justice Department prosecuting a civil rights case involving a killing or other harm to a person or persons after a State has refused to prosecute the individuals involved with or responsible for the killing or other harm, and it seems clear the victims’ civil rights have been violated. See my November 28, 2021 blogpost above, *near end.
Well, Breonna’s case is THE CASE. And, there is no need for any further investigation by the Justice Department. There’s been enough time, almost 2 years, and there is clearly sufficient evidence for an arrest and/or indictment, beginning with a defective and unconstitutional warrant, relied upon by the police in breaking into Breonna’s apartment. The only legal basis for the police breaking into Breonna’s apartment was the purported seizure and/or capture of evidence (i.e., illicit or illegal drugs) of criminal conduct by Breonna’s then suspected drug-dealing boyfriend. Apparently, the police suspected that the drug dealer was somehow dealing drugs out of Breonna’s apartment, and, apparently, the police obtained the warrant to discover and recover the illegal drugs that they believed were in Breonna’s apartment. And what was the evidence that there were illegal drugs in the apartment ? The Detective in the case, Joshua Jaynes, who sought the warrant, “said he confirmed with a U.S. postal inspector that a suspected drug dealer was receiving packages at Taylor’s home.” But, Jaynes “later admitted he didn’t contact the postal service.” AP News. And, he “acknowledged that (the warrant) contained false information”. Id. So, if the postal service evidence was all the evidence the police had in breaking in Brionna’s apartment, it had no evidence, because the postal service evidence was false evidence. Therefore, there is clearly due process implications there, even if there was other evidence that supported the warrant.
Another scenario with due process , “under color of law”, implications , was the police returning fire after Breoanna’s boyfriend fired one shot injuring one of the policeman’s leg. First of all, the boyfriend had a legal RIGHT to fire the weapon at what he suspected was a burglar breaking into Breonna’s home. He had no notice that the suspected burglar was the police (this wasn’t just a knock at the door, this was a breaking in or breaking down the door). And, the break-in was unannounced, i.e., “no-knock”. Next, once the boyfriend fired the one shot, it was the police’s DUTY, per due process, to now ANNOUNCE that “THIS IS THE POLICE” , “don’t shoot”, before returning fire. When the police did not do so, and, thereafter, returned fire, killing Breonna, they denied her substantive due process.
There is enough probable cause evidence for the Justice Department to bring charges against all the officers involved, without any FURTHER investigation. So, the Justice Department’s claim that it needs more time for further investigation is without merit. If it can bring federal charges against the defendants in the Ahmaud Aubrey and George Floyd cases, based on evidence that was known before trial, it can bring federal charges against the police officers in the Breonna Taylor’s case based on evidence that is known before and without a State trial.
If the Justice Department really wants to show Black people and other people of color, and the country, that it will prosecute police officers for wrongfully killing Black people and other people of color when State officials refuse to do so, NOW IS THE TIME and BREONNA TAYLOR’S CASE IS THE CASE.
UPDATE—February 23, 2022
See the SENTENCING of Kim Potter in the Daunte Wright case at (* ) in the December 29, 2021 UPDATE above. *Plus, other ( * ) inserted.
UPDATE—February 25, 2022 *A CONTRIBUTION TO BLACK HISTORY MONTH
THE GEORGE FLOYD FEDERAL TRIAL : THE VERDICT : GUILTY (J. ALEXANDER KUENG, TOU THAO, AND THOMAS LANE); THIS WAS A MESSAGE VERDICT FROM A POST-GEORGE FLOYD/2020 RACIAL JUSTICE JURY
Today, in the federal criminal-civil rights trial of J. Alexander Kueng, Tou Thao, and Thomas Lane, who all played a role in contributing to George Floyd’s death, all three were found guilty of the civil rights counts that they were charged with : Kueng, who is Black, and Thao, who is Hmong American, were charged with two counts, (1) depriving George Floyd of his civil rights by showing deliberate indifference to his medical needs and willfully failing to aid him , and (2) failing to intervene to stop Chauvin’s use of unreasonable force, resulting in bodily injury to and death of Floyd. Lane, who is white, was only charged with (1).
Clearly, the all-white jury * was sending a message with this verdict : police officers cannot stand around, or otherwise, and refuse to intervene when it is clear intervention is necessary to prevent serious bodily harm or death of a suspect, even if they must go against the authority of a supervisor. *Even if the jury did not intend to send this message, the message is sent nonetheless.
I believe the verdicts for Kueng and Thao were warranted. I believe the verdict for Lane was not. I believe Lane had special facts supporting him that the other two defendants did not have. And those special facts if argued correctly would have caused the jury to find him not guilty. I believe Lane was not guilty, as a matter of fact and law. Lane needed his case to be presented to the jury better or differently, apparently. For instance, “In emotional testimony on Monday, former Minnesota police officer Thomas Lane told a jury that he tried to help George Floyd several times but in each instance was blocked by his senior officer, Derek Chauvin.” ABC News. “The 38-year-old Lane told the U.S. District Court jury in St. Paul, Minnesota, that when paramedics came to take Floyd to a hospital, he volunteered to assist them, testifying that he thought Floyd “didn’t look good”. Id. Finally, “He welled up with emotion and his voice cracked when asked by his attorney . . . why he decided to go into the ambulance and help try to revive Floyd. ‘I felt with the situation, they might need a hand.’ Lane testified.” Id. There are other facts supporting his acquittal as well. Hopefully, Lane‘s attorney moved for an acquittal, so that he can raise the matter on appeal. Lane’s conviction might cause a good cop to become bitter or disillusioned with policing.
THE JURORS
It has been reported that a few of the jurors cried after the verdicts were read. The crying began with one juror and spread to others. I will speculate that the crying was in large part on behalf of Lane, but, perhaps for all the men, because the crying jurors didn’t believe that the men actively caused George Floyd’s death, and are being unfairly punished. Here’s what else I think : I think the initial crying juror wanted to vote to acquit Lane, but did not have the strength to vote how she really felt or believed. Rather, she went along with the other jurors because she did not have the strength to be the sole holdout, and the other jurors wanted to convict. It takes STRENGTH and integrity to be a sole holdout.
THE BOTTOMLINE : I believe, much to my reluctance as well, that Thao and Kueng were rightfully found guilty, under the circumstances. They did not try to assist George. *And, they should have. I think the jurors’ decision was meant to send a message, and it was the correct message. Life matters. However, I believe the men should receive a minimal sentence for their conduct because they didn’t directly cause George Floyd’s death, and it is doubtful that either one of them would have done what Derek Chauvin did.
CONTINUED POST-GEORGE FLOYD/2020 RACIAL JUSTICE MOVEMENT PROGRESS
First, the U.S. Department of Justice brought federal civil rights charges. This time BEFORE state charges have been brought. Usually, if at all, federal charges might come after a state trial had failed to produce a conviction. This is progress. And, a model for progress in other states by the Justice Department. This is post-George Floyd/2020 Racial Justice progress.
Next, the fact that an all-white jury rendered a guilty verdict for police misconduct, including the misconduct of a white police officer whose misconduct is questionable, is indicative of progress in our strife for equality. For comparison, we only need to reflect back on the Rodney King state court trial in California; a decision of not guilty for the police officers by an all-white jury, even though the police officers nearly beat King to death. Here, the officers simply failed to intervene and/or render aid, and an all-white jury found them guilty, one of which is white, for whom there is a colorable claim of innocence. That’s progress, whatever part of the country it’s in.
*NOTE : It has come to my attention that there could be an alternative motivation for the all-white jury convicting Thao, Kueng, and Lane. Racial prejudice. That is, they intended to convict Thao and Kueng because they are minorities, notwithstanding that they are police officers, and they could not withstand scrutiny without also convicting Lane because he was holding down George’s legs. So, they all had to go.
What brought the above theory to my attention was a news report, “The federal jury pool was selected from people throughout the state (Minnesota), which includes areas much more conservative and less diverse than the Minneapolis area from which Chauvin’s jury was drawn” (emphasis added). I believe the racial prejudice ltheory is just as likely as my previous theory. But, I believe the message that is sent from the convictions is still viable and constructive.
UPDATE—March 3, 2022
THE AHMAUD AUBREY FEDERAL HATE CRIME TRIAL : VERDICT : GUILTY (ALL DEFENDANTS; TRAVIS AND GREGORY McMICHAEL AND WILLIAM BRYAN) ; THE FEDERAL TRIAL WAS SUPERFLUOUS , BUT NEEDED.
All three defendants, the McMichaels and Bryan were convicted of a federal hate crime and related offenses , including using force and threats of force to interfere with Aubrey’s right to use a public street because of his race and attempted kidnapping. The McMichaels were also charged with a weapons charge, e.g., using, carrying, brandishing and/or discharging a weapon.
Many likely concluded that the killing of Aubrey was racially motivated. The federal trial and convictions confirmed that conclusion. Thus, the hate crimes trial was needed for that reason alone.
AUBREY’S MOTHER WAS WRONG TO CRITICIZE ASS’T ATTORNEY GENERAL KRISTEN CLARKE. SHE (THE MOTHER) SIMPLY GAMBLED AND HAPPEN TO WIN.
Aubrey’s mother, Wanda Cooper-Jones, criticized Ass’t Attorney General, Civil Rights Division, Kristen Clarke, publicly, because Clarke was trying to persuade her and the Aubrey family to accept Travis McMichael’s plea to the hate crime charges. First of all, were it not for Kristen Clarke, who is Black, there likely would not have been a federal hate crime trial. So, there would be no issue of a plea or trial. And, the Aubrey family could not do anything about it. They would have had to be satisfied with the state verdict.
Second, the reason Clarke was pressing the family to accept the plea was because of the old saying, “a bird in the hand” is better than two or three in the bush. That is, with the guilty plea, the Aubrey family would be assured of a conviction, and not have to take a chance with a jury decision, which might be unfavorable, i.e., not guilty. Look at the Curtis Reeves “popcorn” trial in Florida and the Breonna Taylor/Brett Hankison trial in Kentucky. Two not guilty verdicts that clearly were “astonishing”, to say the least. So, when Cooper-Jones decided not to accept the offer of a plea from Travis McMichael, she GAMBLED that the jury at the hate crime trial would find the defendants guilty. As it turned out, all the defendants were found guilty at the trial, so the Aubrey family won the gamble. However, if the defendants would have been found not guilty, Cooper-Jones probably would have regretted not accepting the plea. So, Cooper-Jones should not have criticized Clarke, when Clarke was looking out for the Aubrey family’s best interest in trying to secure a “bird in the hand”. But, the prosecutor who ask the sentencing judge to ignore the family’s wishes regarding the plea is another matter. She, Tara Lyons, was wrong .
Next, sentencing.
UPDATE—March 4, 2022.
THE BREONNA TAYLOR/BRETT HANKISON TRIAL AND VERDICT : NOT GUILTY ; HANKISON RECEIVED A JURY OF HIS PEERS AND HIS PEERS GRANTED HIM A NOT GUILTY VERDICT , ALA, RODNEY KING ; AND, AS IN THE RODNEY KING MATTER, THE HANKISON VERDICT SHOULD PROVIDE THE U.S. JUSTICE DEPARTMENT WITH THE FINAL PIECE OF THE PUZZLE TO BRING CIVIL RIGHTS CHARGES AGAINST BREONNA TAYLOR’S KILLERS
A few days ago, a Kentucky jury found Brett Hankison not guilty of 3 counts of wanton endangerment, one count each for three neighbors who were present in their apartment when Hankison bullets pierced their wall while he was shooting into Breonna Taylor’s apartment. And, for the uninformed, Breonna Taylor was the Black woman who was killed during a March, 2020 drug raid carried out by Louisville police. While prosecutors did not bring charges against the police officers who actually killed Breonna, they did bring charges against Hankison for shooting into a neighbor of Breonna’s apartment.
Clearly, Hankison should have been convicted, he literally confessed on the witness stand, under oath, that he committed the crime(s), “Hankison. . . testified during the trial that he saw a muzzle flash from Taylor’s darkened hallway after police burst through the door and (he) thought officers were under heavy fire, so he quickly wheeled around a corner and sprayed bullets through the door and window, hoping to end the threat.” He “admitted to firing through Taylor’s patio doors and bedroom window”, which penetrated the neighbors’ walls, even though he did not actually SEE who he was shooting at, *or who was in Breonna’s apartment or the neighbors’ apartment. That’s the crime. Wanton endangerment in Kentucky is “when, under circumstances manifesting extreme indifference to the value of human life, (one) wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another”. This definition precisely applied to the neighbors (a man, woman, and child), who, in fact, were the actual victims of the crime(s) charged. The charge was not brought as to Breonna because of the gunfire coming from her apartment, which, on its face, provided a thoughtful defense against the charge as to her. But, it did not provide a defense as to the neighbors. It clearly applied to the neighbors, and Hankison clearly confessed to the crime during the trial. The neighbors were just lucky that they weren’t killed. Hankison had no defense as to the neighbors, and he should have been convicted. So why wasn’t he ? Think Rodney King. Explanation, infra.
THE JURY
“The jury of 10 men and five women was selected after several days of questioning from a pool expanded to about 250 people. Before deliberations, the jury was reduced to eight men and four women after three alternates were dismissed.” Most importantly, “The judge (Ann Bailey Smith) declined to release details about their race or ethnicity”. And *now, I can see why; while acting as if this is some color-blind society or country. Please ! It’s just the opposite. Indeed, I surmise, as in Rodney King, this is the crux of the injustice in the case, i.e., the final jury. While the judge refused to divulge the racial makeup of the jury, I am satisfied that the jury was a predominantly white jury, and a predominantly white MALE jury, who predominantly contributed to the not guilty verdict, as in King***. I base my assessment on a CourtTV racial breakdown of the jury after jury selection and prior to exclusion of the alternates. CourtTV indicated that there were 9 white males (that I clearly noted), and I believe 2 to 3 non-whites, but, I’m not certain. The only group I’m certain of is the white males. So, I feel comfortable in concluding that the final jury was predominantly white, and white male.
Therefore, Hankison had a jury of his peers, and his peers, like in the Rodney King case, granted him a not guilty verdict, notwithstanding Hankison’s confession. But, one might ponder, Hankison is white, and the neighbors are white, unlike the black Rodney King, so race couldn’t be a factor. Not true. It was a factor. Breonna Taylor is Black, and while the prosecution and defense insisted that the trial wasn’t about Breonna, it clearly was about Breonna, and the white jury knew this too. And, from my view, the white male jury did not want ANY white officer associated with Breonna’s death found guilty of any offense associated with her death, either now or in the future. Thus, the not guilty verdict. If not Rodney King, does Emmet Till ring a bell?
JUSTICE DEPARTMENT INTERVENTION
If the Justice Department has not been convinced to bring criminal civil rights actions against the killers of Breonna Taylor, the Hankison not guilty verdict should provide the catalyst to do so. If there’s been a missing piece of the puzzle, the Hankison not guilty verdict should fill the void. NOW IS THE TIME.
While Hankison might have had a thoughtful defense to the state crime with which he was charged, neither he, nor the other defendants, will have a convincing defense to civil rights violations before a fair and impartial jury in a federal criminal trial.
IF THE JUSTICE DEPARTMENT COULD BRING FEDERAL CHARGES AGAINST THE RODNEY KING DEFENDANTS AFTER AN ALL-WHITE*** JURY FOUND THEM NOT GUILTY OF STATE CRIMES NOT INVOLVING DEATH, THEN CERTAINLY THE CURRENT JUSTICE DEPARTMENT, AFTER GEORGE FLOYD, CAN AND SHOULD BRING FEDERAL CHARGES AGAINST THE BREONNA TAYLOR KILLERS/SUSPECTS , WHERE THEIR CRIMES RESULTED IN BREONNA’S DEATH
***10 whites, one Latina and one Asian
UPDATE—May 19, 2022
THE PLEA DEAL OF THOMAS LANE : AN INJUSTICE IN THE JUSTICE SYSTEM
Thomas Lane, the white Minnesota police officer charged with aiding and abetting in the George Floyd murder case, has pleaded guilty to aiding and abetting second- degree manslaughter. I believe the plea is an injustice to Lane. While there is an arguable basis for Lane coping the plea, while faced with a murder charge as well (which was dismissed as part of the plea deal), I believe there was enough evidence supporting Lane’s innocence for him to proceed to trial (as the other two defendants are doing, with much weaker cases in my view). I believe Lane needed a much better lawyer *than he had (Earl Gray), one who believed in himself or herself and his or her ability to rely on and use the evidence supporting Lane‘s innocence to convince Lane to go to trial. Remember, Lane is a white police officer. And, as unfair as it is, many juries are partial to police officers; and, again, Lane is a white police officer. Therefore, that circumstance, together with the evidence that showed Lane actually was concerned about Floyd’s welfare, would have caused a good lawyer to convince Lane to go to trial. Lane was NOT Derek Chauvin.
Lane’s plea is not like the “sweetheart” deal that David Lacey got when he pleaded to assault, and later had the assault charges (3) DISMISSED , after completing a diversion program. Lane’s felony charge will stay with him. There is no dismissal and no appeal. If Lane had received a David Lacey plea agreement, even with the evidence supporting his innocence, I could see him coping a plea. But, that’s not what Lane got. He got a conviction. Of the four police officers involved with Floyd’s murder, Lane was the ONLY ONE who actually showed some care or concern for Floyd’s welfare. For example, “Lane twice asked Chauvin to reposition Floyd during the restraint but was denied both times. . . . The first time, Lane asked Chauvin whether they should put Floyd’s legs up, as they are taught in the academy. ‘No, we’re good’, Chauvin said, according to Lane’s testimony.” CNN. “Lane then said he asked Chauvin whether they should roll Floyd on his side. ‘No, we’re good like this’, Chauvin responded, according to Lane’s testimony.” Id. The body cam footage showed some of this to the public, including ME. Finally, “An ambulance eventually arrived and responders lifted Floyd, who was limp at that point, into the vehicle. Lane joined them in the ambulance and did CPR on Floyd.” Id. (emphasis added). Lane’s felony conviction is a terrible injustice. His sentence should be probation, or no more than one year in jail.
*Update : 9-22-2022. Lane has now been sentenced to 3 years in prison for the state aiding and abetting offense, to run currently with his 30 month federal sentence for violating George Floyd’s civil rights. While the court’s ruling having the sentence to run concurrently with his federal sentence does help and provide Lane with some sense of justice (the court could have ordered the sentence to run consecutive to the federal sentence), I continue to believe his conviction is an injustice.
UPDATE—July 13, 2022
THE FEDERAL SENTENCING OF DEREK CHAUVIN : THE SWEETHEART DEAL FOR CHAUVIN MADE THE FEDERAL PROCEEDINGS USELESS AND WASTEFUL ; THE SENTENCE IS THE SAME AS NO SENTENCE, A SYMBOL WITHOUT SUBSTANCE; A STEP BACK FOR RACIAL JUSTICE
Murderer Derek Chauvin has been sentenced for his plea of guilty for violating the civil rights of George Floyd in his federal proceeding. His final sentence was the same as NO SENTENCE. A step backward for racial justice. The primary reasons are because the U.S. Justice Department recommended a 20-25 year sentence to run concurrently (along with Chauvin’s state sentence of 22 years) rather than consecutively (to run after Chauvin’s state sentence has been completed), and the judge, Senior U.S. District Judge Paul Magnuson, sentenced Chauvin to a wholly CONCURRENT sentence of 21 years (reduced to less than 21 years , 20.4 years, after the judge allowed 7 years of time served). So that when Chauvin finish serving his state sentence, he would have already completed serving his federal sentence. That is, he will have served both sentences at the same time. Thus, NO federal sentence. Only a consecutive sentence of some length could have created an actual federal sentence. And, to add insult to injury, Chauvin will serve most of his prison time in federal prison (rather than state prison), which is less harsh and more protective than state prison. Chauvin received the sweetest “sweetheart” deal a white man convicted of violating a Black man’s civil rights through murder could receive, with or without a plea bargain. Chauvin “could have faced up to life in prison if he had been convicted at trial”.
The U.S. Attorney did not have to offer or accept a plea bargain. But, after he or she did so, they could have made sure that the recommended sentence was a real sentence. They didn’t do so. The sentencing judge, being aware of the facts and circumstances of Chauvin‘s violation of George Floyd’s civil rights, did not have to accept the Justice Department’s recommendation of a concurrent sentence. But, he did. Thus, no sentence. So, what was the point or purpose of the Justice Department bringing the prosecution in the first place ?
The federal prosecution of Chauvin for violating Floyd’s civil rights was absolutely USELESS and wasteful. Everybody and their brother KNOW that Floyd’s civil rights were violated, so the only purpose for a federal prosecution would be to secure a fair sentence and/or punishment for the murder of Floyd. That purpose was neither attempted nor achieved. So, the prosecution was useless. The Justice Department’s message to the Floyd family in particular, and to Black people generally, that it would prosecute a white police officer for murdering a Black man or violating his civil rights was simply a SYMBOL WITHOUT SUBSTANCE.
The prosecution by the Minnesota federal prosecutors was also a waste of public government resources. Those resources would have been better spent on prosecuting the killer of Amir Locke, a Black man who was murdered pursuant to a so-called “no-knock” search warrant by a white Minnesota policeman. While Minn. State Atty Gen. Keith Ellison has gotten it right in prosecuting those involved in the murder of George Floyd and the manslaughter of Daunte Wright, he got it wrong with Locke. The officer should have been arrested, charged, and prosecuted at least for manslaughter (even if Ellison had reservations about a charge of second degree murder—even though there was a basis for that charge as well). “Ellison said prosecutors determined Officer Mark Hanneman was justified in firing his weapon”. That should have been a question for a jury to decide. So, the Justice Department should have used the Derek Chauvin resources to prosecute the killer of Locke, and that would have avoided the resources being wasted.
THE BOTTOMLINE : While I have emphasized what I perceive as the progress the country has made after the George Floyd (Derek Chauvin) trial and conviction and the 2020 Racial Justice Movement, in terms of Justice Department actions enforcing the civil rights of Black people, these actions by the Justice Department in its sentencing recommendation for Derek Chauvin COMBINED with its failure to prosecute Hanneman for Locke’s killing is a GIANT step BACKWARD from RACIAL JUSTICE by the Justice Department, in addition to its failure to prosecute the killers of Breonna Taylor. Instead of progress, it’s regress.
UPDATE—August 7, 2022
THE BREONNA TAYLOR CASE : REAL PROGRESS BY THE JUSTICE DEPARTMENT AS DEFINED BY ME, MYSELF , AND I
The Justice Department has now charged four police officers with violating the civil rights of Breonna Taylor. This is REAL PROGRESS. And, for all of you who do not know it, I defined “real progress” by the Justice Department , and I identified Breonna’s case as the case to demonstrate that “real progress”. See my February 1, 2022 blogpost above. So now, it has happened. Much appreciation to Attorney General Merrick Garland and the Justice Department on behalf of Breonna Taylor’s family, Black people nationwide, and other people of color.
In view of the latest Derek Chauvin “gift” federal sentence (21 years to run concurrently with his 22 year state sentence—if Chauvin had been convicted in Georgia, he would have received life without parole) this action by the Justice Department was needed to put the country back on track towards a goal of racial justice, in both the criminal justice system and America.
While no one can predict the outcome of the prosecution, charging the officers was a GIANT STEP forward, regardless. The Justice Department has done its part and its job (to include the trial). There are countless other and similar cases , such as the Amir Locke case in Minnesota, that should be prosecuted, but, again, on behalf of Black people and especially Black males, I thank the Justice Department for beginning (after the George Floyd and Ahmaud Arbery cases) with Breonna’s case. Again, this is REAL PROGRESS.
UPDATE—September 20, 2022
NICOLE LINTON : MANSLAUGHTER ? CLEARLY, UNLESS. BUT, MURDER ? CLEARLY AN OVERCHARGE
By now most Angelenos are aware of the tragic, tragic loss of life caused by the speeding of Nicole Linton, a Black woman, on August 4th. Not only was there 6 lives lost, including an unborn child, but, literally, a complete family was wiped out, i.e., a boyfriend, his girlfriend, her almost one-year old son, and her unborn child (probably, the child of the boyfriend). Clearly, Linton is responsible for the six deaths, but is she criminally liable for the deaths ? That is or will be the question for a court of law, and likely, a jury.
Under ordinary circumstances, Linton would be clearly liable for involuntary or vehicular manslaughter simply based on the speeding violation alone. And, the District Attorney is clearly justified in bringing manslaughter charges against Linton. But, murder ? Just as the D.A. is clearly justified in bringing manslaughter charges, he is clearly not justified in bringing murder charges. It is clearly an overcharge, borne out of capitalizing on a tragic situation and public outrage and/or borne out of racial discrimination, i.e., when is the last time a white person who has caused driving deaths based on a speeding violation been charged with murder, as opposed to manslaughter ? (The D.A.’s Office or the L.A. Times should have the resources to answer the question. Provide us with the answer). If the D.A. can’t provide a recent case, I must assume one of the reasons for the overcharge is racial discrimination. And, I have already
stated that, in my opinion, George Gascon exercises racial discrimination in his prosecutorial decisions. That’s why I supported his recall. Further, this case is not an “ordinary” manslaughter case because of the mental illness factor, and that factor may place a manslaughter conviction in jeopardy. Thus, the “unless” above.
But, getting back to the first point, pubic outrage. I believe the DA’s Office is simply taking advantage of the public outrage surrounding the killings, while realizing that the criminal law itself does not support a murder charge, or at least, makes a murder charge questionable. Now, Gascon has floated around some concept associated with the death of a fetus that he says requires him to charge Linton with murder for the death of the unborn child; but, even if that’s the case when it comes to the unborn child, why the adults ? I’m not aware of that provision, but Linton’s lawyers should flush that out. But, I know the difference between manslaughter and murder, and Linton did not commit murder of any of the victims based on the public available facts. If the DA has other facts, not made public, then maybe.
In my view, at minimum, for Linton to be charged with murder of any kind, she would have had to personally know one or more of the victims, and have some type of relationship with them, and, finally, recognize them before her car made contact with one of the vehicles. Without that, murder is an overcharge. Linton lacked the proper mens rea .
LINTON’S BAIL
Linton has, thusfar, been denied bail, “with prosecutors alleging she is a flight risk and a danger to the community”. What’s the basis for the flight risk ? Where is she suppose to take flight to go to ? Would her family let her take flight and become a fugitive ? I don’t believe the flight risk factor has any merit .
A danger to the community. So what’s the basis for the government finding that Linton is or will be a danger to the community? The incident itself ? If that’s the case, no one involved in a speed related accident causing death would receive bail. The accident itself would be an automatic denial of bail. So that would mean no defendants who caused deaths during an automobile accident would obtain bail, and we know that is not the case. Further, even if the Court somehow found that Linton’s driving was a danger to the community, then, forbid her from driving while out on bail.
To deny Linton bail under the circumstances of this case, while keeping her incarcerated, would be sentencing and punishing her before a trial, and that is exactly what the Constitution forbids.
The Bottomline : There is a very high standard, the highest standard, for the complete denial of bail. And, that standard is not met here. If, in fact, Linton had murdered the six people, rather than recklessly causing their deaths, perhaps the standard would be met. But, again, this was not murder. And how often does a court deny a defendant bail in a *manslaughter case , involuntary or vehicular ?
NOTE : Linton’s trial judge is judge Victoria Wilson. I have, in one of my blogs, named judge Wilson as one of only two judges in the L.A. Superior Court system whom I’ve found to be fair. But, she is said to have said, referring to Linton, “She crashed into and set two cars on fire. She stole six innocent lives.” And, apparently, judge Wilson determined that this was a good reason for denying Linton bail. I respectfully disagree with her. Again, this was manslaughter, NOT murder.
UPDATE—September 22, 2022
See my May 19, 2022 UPDATE above at ( * )(at the end of the blogpost) regarding Officer Thomas Lane.
UPDATE : November 14, 2022
NICOLE LINTON : AFTER GONZALEZ AND CEBALLOS, THE COURT SHOULD RECONSIDER LINTON’S BAIL, AND, THEREAFTER, GRANT HER BAIL, AT LEAST.
Now, after the news of speeding accidents causing deaths in the cases of Kevin Gonzalez and Alexander Ceballos, with both being initially charged with “suspicion of murder”, and both being granted bail, the Court should reconsider the bail status of Nicole Linton.
Gonzalez was arrested and charged with suspicion of 2 counts of murder, after 2 people were killed after his vehicle crashed into the rear of a vehicle containing or carrying two persons, a father and son , and after which both cars burst into flames, killing both the father and son, in Woodland Hills. “A 2014 Toyota Camry was speeding eastbound . . . when it crashed into the rear of a 1965 Mustang. . . .” Gonzalez had bail set at $4 million dollars.
Ceballos , according to news reports, crashed into 3 cars in Porter Ranch killing 2 teenage passengers, a 16 year-old boy and a 14 year-old girl, in his vehicle. He was arrested and booked on “suspicion of murder” and had bail set at $4 million dollars. “According to police, Ceballos was speeding south. . . in a Honda CR-V. . . when the vehicle veered into the northbound lanes, crashing into two other vehicles and a parked car.
First of all, I doubt very seriously if either Gonzalez or Ceballos would have been charged with suspicion of murder were it not for my blog raising the issue of Linton being charged with murder, rather than vehicular manslaughter, under similar circumstances. I believe both men would have been charged with vehicular manslaughter were it not for the Linton case. Because Linton was over-charged with murder, Gonzalez and Ceballos had to be over-charged with murder as well, otherwise, the discrimination would be too apparent. See, a recent automobile accident involving speeding, and causing death in Garden Grove. The driver of a Tesla was charged with vehicular manslaughter. But, this was Orange County.
Therefore, there remains the issue of over-charged murder counts for Linton, Gonzalez, and Ceballos.
THE COURT’S RECONSIDERATION OF LINTON’S BAIL STATUS
In my opinion, the Court should reconsider Linton’s bail status in view of the Gonzalez and Ceballos cases, even if it must do so sua sponte. While it would certainly be preferable for the Court to act in response to a motion by Linton’s counsel, I believe that the issue is so important to Linton’s fundamental constitutional rights that the Court would be empowered to act sua sponte to protect Linton’s rights by at least reconsidering her bail status, with input from the parties. And, upon reconsideration, I believe the Court should grant bail to Linton. And this is ESPECIALLY so because there appears to be an issue of DUI in both the Gonzalez and Ceballos cases, and there is no DUI issue in Linton’s case. Yet, both Gonzalez and Ceballos were granted bail, while Linton was not.
So, putting aside the question of over-charged murder counts, the Court should at least reconsider Linton’s bail status in view of the Gonzalez and Ceballos cases.
Finally, I believe that to continue to incarcerate Linton, under the circumstances, without at least a reconsideration, would amount to *denying Linton due process of law, equal protection of the law, and effective assistance of counsel.
*NOTE : I am not uncaring about the deceased in the case or their families, because I do FEEL THEIR PAIN; I just believe that Linton should not be treated differently or more harsher than other defendants in the same or similar circumstances, especially when there is no D.U.I. involved in her case and at least one doctor has diagnosed her with being bipolar.
UPDATE—November 30, 2022
THE TIME HAS COME FOR ME TO FILE A CIVIL ACTION IN FEDERAL COURT FOR HARASSMENT, DISCRIMINATION, RETALIATION, AND VIOLATION OF MY CONSTITUTIONAL RIGHTS, AND OTHER CLAIMS, AGAINST VARIOUS GOVERNMENT ENTITIES AND/OR AGENCIES; WHICH MEANS, THE TIME HAS COME FOR ME TO RETAIN COUNSEL ; SO, I AM ENTERTAINING OFFERS OF REPRESENTATION FROM CIVIL RIGHTS LAWYERS WHO PRACTICE IN FEDERAL COURT
I am putting out this announcement here, because I consider my anticipated actions a part of the George Floyd 2020 Racial Justice Movement. So, it is in the spirit of that Movement (RJM) that I will be filing my Complaint.
These government entities or agencies , who will remain anonymous until I retain counsel (but they know who they are) have harassed me, discriminated against me, retaliated against me, and violated my constitutional rights for years. They have engaged in burglarizing my car and home multiple times, searching for incriminating evidence against them, one time recently (i.e., in anticipation of the forthcoming lawsuit). But, the bulk of the evidence that will find the defendants liable will not be found in my home, car, or any other facility of mine. My strongest weapon (and, in part, evidence) will be the law, e.g., inferences. The agencies have engaged in illegal surveillance of me, and interfered with personal and professional relationships, while at the same time, intimidating citizens into cooperating with them.
I’m also filing this lawsuit on behalf of my 100 year-old Black mother (in spirit only—I will be the only plaintiff) for her mistreatment by the agencies.
These agencies are supposed to be protecting citizens rights; but, instead of doing so, they chose to violate my rights. Criminals purportedly going after other criminals. They have intentionally tried to drive me to Skid Row. Simple malice.
So, now, it’s time for me to see what a jury will think about all of these actions and others.
I have a few lawyers in mind to contact, but, I am opening it up to the general civil rights bar, especially those lawyers who look forward to holding the government accountable for their violations of citizens’ fundamental rights.
For all attorneys who may be interested in filing a civil rights claim of this nature, please contact me at:
Laurack D. Bray
P.O. Box 611432
Los Angeles, CA 90061
Tel. 805 - 901- 2693
UPDATE—January 19, 2023
DISRESPECTFUL GOVERNMENT AGENCIES : DR. KING DESERVES BETTER
Usually when a holiday falls on a weekday, the trash or garbage collectors skip the regular trash day, and collect the trash/garbage the following day. But not on Dr. Martin Luther King, Jr. Day; the trash/garbage collectors picked up the trash on the regular day (it has happened before, but I gave it more thought this time). I think it’s totally DISRESPECTFUL to Dr. King, because it indicates that his holiday is just another day. I don’t know whether the workers are given a choice or whether they are required to work on the regular pickup day, either way, it’s disrespectful to Martin, as deeming his holiday meaningless, or, at least, less meaningful. I don’t see an exception being made on any other Federal holidays, e.g., July 4th or Labor Day. And to the extent that it’s done because Dr. King is Black, it is a continuation of California’s racism.
Moreover, I don’t perform “service” on MLK’s birthday. Why ? Because I don’t perform it on any other holiday. So, why should I perform it on MLK’s Day? I treat King’s holiday like any other Federal holiday. Plus, if I performed free service on King’s holiday, I would feel like a slave performing free service on a holiday on the plantation back in the day. The difference being, back then, I would have had no choice. But, today, thanks to some Black people before Dr. King, Dr. King himself, and some black and white people after him, I have a choice; and I choose to treat King’s holiday like any other holiday.
If the government has some justifiable or non-discriminatory reason for the difference in treatment of Dr. King’s Day, I would like to know what it is.
UPDATE—January 19, 2023
KEENAN ANDERSON : “THEY’RE TRYING TO GEORGE FLOYD ME” : WELL, KEENAN, THEY DID GEORGE FLOYD YOU; AND LIKE WITH GEORGE FLOYD : IT’S SECOND DEGREE MURDER
Keenan Anderson, 31, male, and Black, was killed by police on January 3d (or shortly thereafter, with the actual death occurring at the hospital where Anderson was brought after the death-causing action by the police) after being apprehended and subdued pursuant to an investigation of a traffic incident. Elements of the incident surrounding the ultimate death of Anderson mirrors the elements surrounding George Floyd’s death. Some of the similarities are as follows :
1. Both of them predicted that they would be killed by the police while being subdued.
2. Both of them cried out for help.
3. Both of them “begged” for help, i.e., “Please, please. . .”
4. Both of them sat on the sidewalk momentarily.
5. Both of them had the issue of drugs in their system being made an issue by the police.
6. Both of them were subdued by several officers.
7. Both of the cases involved a police body part being placed on the neck (Floyd, a knee to the neck; and Anderson, an elbow to the neck); and
8. Both of the deaths were ultimately caused by one main police officer action. For Floyd, it was Derek Chauvin’s knee on his neck; for Anderson, it was John Doe tasing him on the back (and the back of his heart).
Although the L.A. broadcast media and the L.A. Times report that the cause of death is undetermined, at least one news source reports that the hospital where Anderson actually died found the cause of death to be cardiac arrest. Because it makes common sense, I give credence to that diagnosis. And, based on this diagnosis, as I concluded with George Floyd’s death, this was second degree murder.
And, there’s sufficient evidence, along with the hospital diagnosis, for the officers involved to be charged with an offense, even if it’s not second degree murder. The best evidence for charging the officers in Anderson’s case, as with George Floyd, is the videotape. It speaks for itself.
Unfortunately for Anderson, he doesn’t have the Black Lives Matter protests and/or demonstrations that George Floyd received, but his death is no less tragic and barbaric than Floyd’s was. Officer John Doe had to know that when he held the taser to Anderson’s body, against his skin, and continually injected electronic shock waves into Anderson’s body, near his heart, that it might cause his death. And the officer should have known this based on common sense, separate and apart from any training in the use and effect of Tasers.
The officers involved in Anderson’s death should be arrested and prosecuted, as the officers in George Floyd’s case were, based on probable cause evidence. If not arrested immediately, the officers should at least be placed on administrative leave until the arrests are made. And, they will be presumed innocent until proven guilty, but that presumption does not take effect until after they are charged.
*Black Lives Matter, LA, did sponsor protests and/or demonstrations on behalf of Anderson and other individuals recently killed by police after this blogpost was originally produced.
UPDATE—January 29, 2023
TYRE NICHOLS : ANOTHER BLACK MAN EVIDENCING THE DEVALUATION OF BLACK LIVES BY POLICE; BUT, A BLACK POLICE CHIEF SHOWED THAT SHE HAS BECOME A PART OF THE GEORGE FLOYD 2020 RACIAL JUSTICE MOVEMENT, AND THAT’S PROGRESS.
Tyre Nichols, a 29 year old Black man, and Fed Ex employee at the time, was brutally beaten and tased by officers of the Memphis (Tennessee) Police Department on January 7th, purportedly evolving from a traffic stop. Nichols subsequently died of his wounds three days later. Because there was police body-cam videotape evidence of the beating, as was the case in the George Floyd murder and the Keenan Anderson case (cited immediately above in this blog), in the spirit of the 2020 Racial Justice Movement, the Memphis Police Chief , Cerelyn Davis, who is Black, fired the five officers involved in the beating, and subsequently, together with the Shelby County District Attorney, brought various charges against the all Black police officers involved, Tadarrius Bean, Demetrius Haley, Emmitt Martin III, Desmond Mills Jr. and Justin Smith, including second degree murder. I haven’t viewed the videotape myself as of yet, *only news snippets , but news reports state that the video shows officers, at different points, laughing and smoking cigarettes during the encounter, which makes the conduct that more egregious. I agree with the Rev. Al Sharpton who stated, “that these officers are Black makes it more egregious to those of us in the civil rights movement.” Black officers are the very ones that Black people, in particular, would not expect to render this type of brutality on other Black people because of the history of our mistreatment in this country, e.g., slavery. And, I know I would expect any Black man who signs on to be a police officer to acknowledge such. It doesn’t mean that Black people would expect to be treated better than any other citizens by Black officers, but it certainly means that Black people expect that they will not be treated worse than other citizens, and in this case, Nichols was probably treated worse by the Black officers than the officers would have treated persons of a different race or ethnic group. And, for me as a Black man, that is sad.
But, putting aside the sheer brutality and barbaric conduct of the officers, what is revealed by the conduct is the consistent devaluation of Black lives by the police. The only thing that allow the police officers, be they black, white, brown, yellow, or red, to consistently murder Black men without second thought, is because they place no value on Black lives, especially Black men’s lives. They kill Black men the same as they would kill an annoying insect, i.e., stomp on it or smash it in some other way, e.g., smash a mosquito or another bug on your arm. The police , whatever color, do not recognize Black men as human beings, which harkens back to the “three-fifths of a man” theory (with the devaluation making them one-fifth or less—police officers, especially white ones, would treat a dog, cat, or mountain lion better). Therefore, until police departments find a way to discover and reject those potential officers who do not value the lives of Black men, the murders are going to continue. George Floyd, Keenan Anderson, and Tyre Nichols are prime examples. If the police had valued their lives, all three would be living today.
But, while it might be difficult if not impossible for police departments to screen and weed out the de-humanizing and/or life-devaluing cops, they (police departments), *when they discover such cops, can do what the Memphis Police Chief did : GET RID OF THEM. So that, at least while they pursue their rights, they will not be de-valuing any other Black men’s lives. At least not as a policeman.
So, as a Black man living in Los Angeles County , the State of California, and the United States of America, and on behalf of all other Black men in this country, I thank Chief Cerelyn Davis for recognizing and implementing a phase of the George Floyd 2020 Racial Justice Movement, and for establishing a precedent and THE PRECEDENT for how to fairly deal with and implement a policy or procedure for police officers who devalue the lives of Black men and others. GET RID OF THEM, expeditiously and legally, while protecting their constitutional rights. The fired officers have a right to challenge both their firing and their criminal charges, but Chief Davis has done her part : to defeat the systematic RACISM in her Department, and perhaps, indirectly, in many, if not most, police departments in this country; and, to respect the value of Black lives. That’s some progress.
UPDATE—February 5, 2023
MOORE, CITY COUNCIL, BASS, GASCON, BONTA AND KEENAN ANDERSON : NOW THAT CHIEF DAVIS OF THE MEMPHIS POLICE DEPARTMENT HAS SET THE PRECEDENT AND DEMONSTRATED HOW TO FAIRLY DEAL WITH CASES WHEREBY A BLACK MAN HAS BEEN KILLED BY POLICE OFFICERS UNDER CIRCUMSTANCES GIVING RISE TO PROBABLE CAUSE FOR THE ARREST OF THE OFFICERS, IF MOORE AND GASCON OR BONTA DOES NOT FOLLOW THAT CHANGE OR PROGRESS IN DEALING WITH THE POLICE KILLING OF KEENAN ANDERSON, THEN, THE PEOPLE OF LOS ANGELES COUNTY, ESPECIALLY BLACK PEOPLE, WILL KNOW THAT YOU (MOORE, CITY COUNCIL. . . ) HAVE NO INTENTION OF EXERCISING CHANGE OR PROGRESS IN DEALING WITH THE KILLING OF BLACK MEN BY THE LAPD. RATHER, THE PEOPLE WILL KNOW THAT YOU INTEND TO CONTINUE WITH THE USUAL WAY OF DEALING WITH THE KILLING OF BLACK MEN BY POLICE, WHICH IS A PRODUCT OF THE SYSTEMIC RACISM OF THE OLD WAY (I.E., PRIOR TO TYRE NICHOLS) OF DOING THINGS BY THE LAPD; THAT IS, NOT ARRESTING, FIRING, PLACING ON ADMINISTRATIVE LEAVE, OR PROSECUTING OFFICERS THAT SHOULD BE CHARGED WITH SECOND DEGREE MURDER FOR KILLING A BLACK MAN.
Last week , the Memphis Police Department , Police Chief Cerelyn Davis, and the Shelby County District Attorney set a precedent in how to fairly and expeditiously mete out justice in a case involving the killing of a Black man by police, where there is probable cause for an arrest of the arresting officers. Davis and the Shelby County D.A. had the same or similar evidence available to them for the investigation and prosecution of the police officers involved with the killing of Tyre Nichols that the LAPD, Police Chief Michael Moore, and D.A. George Gascon have for the investigation and prosecution of the police officers involved with the killing of Keenan Anderson. And the main or primary evidence in both cases is the police body-cam videotape evidence and the medical reports of the respective hospitals where the Black men died. And, there is no need to wait for a coroner’s report in either case before charging the police officers with murder *or manslaughter. Clearly, the Memphis Police and the Memphis D.A. didn’t wait. The only difference between the Memphis case and the Los Angeles case is : Davis and the Shelby County DA took immediate action (within a week after Nichols died), while Moore and Gascon have yet to charge the officers who killed Anderson (and it’s been *over a month since Anderson was killed). *If Memphis didn’t need any more time to “investigate”, before it arrested, fired, and charged the Nichols police officers, why does the LAPD need more time, when the circumstances are similar ? The Memphis PD had probable cause to arrest and it arrested; the LAPD has probable cause to arrest and it refuses to arrest. The Memphis PD and DA charged the police officers with second degree murder; the LAPD and Gascon refuses to charge the Anderson police with anything.
But, besides Moore and Gascon, the Los Angeles City Council, Mayor Karen Bass, and Attorney General Ron Bonta are also responsible for pursuing the progressive and non-racist methodology of dealing with cases of police killings of Black men, where there is probable cause evidence sufficient to arrest and charge the police officers with a crime , as utilized by the Memphis Police and District Attorney’s Offices. In the Nichols case, among other charges, the major charge was second degree murder. In the Anderson case, I suggest the major charge should be the same, second degree murder (based on the same type of action as the George Floyd case). But, even if Gascon considered the lesser offense of manslaughter, some type of action and charge should have been taken already, based on the precedent set by Memphis. Any continued period of time without a charge only shows that Los Angeles County continues to maintain its perceived characterization as a county with a racist police department and district attorney’s office which refuses to change.
Even if Moore *cannot fire the officers who killed Anderson, he can place them on administrative leave, and he hasn’t done that either. And, Gascon can cause the arrest and charging of the police officers himself, through his office, and he hasn’t done so either; and if he doesn’t do it, Bonta can do it. But nothing has been done. And, Memphis shows that, under the circumstances, the non-action by Moore, Gascon, or Bonta is intentional. It makes no difference that one case involves a beating and the other case involves a taser. Both actions involved the intentional and unjustified actions of police officers causing the death of two Black men.
As an aside, Mayor Bass should not have “urged” the Police Commission to reappoint Moore until she saw how he proceeded with the Anderson case (and others) in view of the Nichols case (and how it was handled by the Memphis Police Chief and the County D.A.). Based on how Moore has handled the Anderson case, including by placing the blame on Anderson, in part, for his (Anderson) own death (indicating Anderson “was a felony hit-and-run suspect in some sort of altered mental state who had tried to get into another person’s car and then resisted officers’ efforts to detain him”—which had nothing to do with his cause of death) , Moore should not have been reappointed. Instead of taking Memphis-type action, Moore is making excuses for the Anderson officers. But, the body-cam video speaks for itself. And, that’s why, in my opinion, his reappointment was hurried. Both Bass and the police commissioners, separately, knew that if they waited, Moore’s action would be evaluated against the backdrop of the Nichols case and Chief Davis’s actions in firing and charging the officers with murder. Thus, the Commission “rush(ed) the reappointment, cutting the formal evaluation period from three months to just one.” And, to add insult to injury of Anderson, Moore addressed the Nichols case and stated, according to news reports, “The grotesque actions I watched in the video were incredibly disturbing, cruel and inhumane,” and “To witness former Memphis police officers engaged in such unjustified and excessive force at the expense of Tyre Nichols’ life angers me as a police officer, as an American.” Finally, according to news sources, “Moore sent a letter of condolence to the Nichols’ family.” What about Anderson ? In Moore’s own backyard ? Any condolence to Anderson’s family ? It’s an insult to the Anderson family.
However, from my understanding, a “supermajority of the City Council could override the appointment” of Moore. And that’s why I named the city council as one of the actors above. It also has a role to play in seeking justice for Anderson. One of the councilmembers, on behalf of Anderson, should move to have Moore come before the city council and show cause why the council should not override the Commission’s reappointment of him, with Moore explaining why he is not following the progressive precedent of the Memphis Police Department in handling Anderson’s death, followed by a vote to override or not. Even if Moore cannot fire the Anderson officers himself, he can take whatever steps that he can take to have them fired, including placing them on administrative leave, with or without pay, based on police policy. Moreover, such a procedure before the city council will help Black men of Los Angeles County see where the city council stands in the fight against racial discrimination in the criminal justice process, when dealing with the murder of Black men by the police, especially now with the precedent of the Memphis Police Department. *At this point, I think the City Council should reject Moore’s appointment. Will one of our Black city councilmembers call for an override vote, on behalf of all of the Black men *(and other men of color) who have been killed lately by the LAPD ? If not, will one of the other councilmembers do so ? *Especially, the so-called “progressive” ones.
Finally, Gascon and Bonta have roles to play. Gascon can have the officers arrested and charged on his own, without Moore initiating the process. The same thing for Bonta, if Gascon refuses to initiate the prosecution. Both Gascon and Bonta are supposed to be so-called “progressives”. Anderson shows, or will show, how progressive they are. So far, they are not progressive.
THE BOTTOMLINE : If the police officers responsible for Keenan Anderson’s death are not arrested and charged, several individuals are responsible, not just Moore. And, if some action isn’t taken expeditiously, in view of the precedent set by the Tyre Nichols case, the same individuals are responsible for that action or non-action as well. The Los Angeles County criminal justice system, which includes the City of Los Angeles, is either going to progress, following the lead of Memphis and the Nichols case, or, it’s going to remain the same, i.e., refusing to prosecute police officers that murder Black men, which evolves from systemic racism. Which will it be ?
*Moore can no longer be a part of the problem, he is set to retire at the end of February of this year, 2024.
UPDATE—March 21, 2023
KEENAN ANDERSON : THE LOS ANGELES COUNTY CRIMINAL JUSTICE SYSTEM REMAINS THE SAME
The answer to the question *immediately above, i.e., “which will it be?” is : the L.A. County criminal justice system remains the same. The systemic racism continues. In “liberal” California. It shows how important the Black Lives Matter initiated protests were to the murder of George Floyd. And, the prosecution of Derek Chauvin. I betcha Ben Crump, *in his pursuit of a civil remedy for Anderson, is finding out that “liberal” California is not Breonna Taylor’s Kentucky or George Floyd’s Minnesota. No, this is “liberal” California, which has more racist groups than any other state in the Union.
UPDATE—February 29, 2024
See (*) at the end of the February 5, 2023 entry above. Chief Michael Moore has now retired.
**UPDATE—June 25, 2024
THE KILLING OF XAVIER CERF BY IVAN GALLEGOS : SECOND DEGREE MURDER ; ATTORNEY GENERAL ROB BONTA MUST OVERRIDE GASCON AND CHARGE GALLEGOS WITH SECOND DEGREE MURDER. A JURY MUST DECIDE IF HE’S GUILTY OR NOT GUILTY.
It has already been reported, but, briefly, one Xavier Cerf, who was a Black male, was killed by one Ivan Gallegos (Hispanic or Latino ?), who is a USC (University of Southern California) student. The killing occurred during the breaking into of a vehicle (Mercedes Benz) belonging to another person (some news reports say it was Gallegos’; some say it was a roommate of Gallegos; and others say it was an at random break-in) by Cerf. For the purpose of whether Gallegos should be prosecuted or not, it would be a stronger defense for Gallegos if it was his car. And, weaker if it wasn’t. Originally, I was middle of the road, leaning in favor of Gallegos because I believed that Gallegos caught Cerf in the process of stealing his car and a struggle ensued whereby Gallegos pulled out a knife and stabbed Cerf in defending himself during the struggle. But, I have now discovered that is not what happened, so my position has changed. I now believe Gallegos’s acts, under the reported facts and circumstances, amount to second degree murder. And that a jury should decide whether Gallegos is or is not guilty of second degree murder. Therefore, I believe, strongly, that Gallegos, in the interest of justice, must be charged with second degree murder.
According to news reports, Gallegos , along with others (again, news reports vary, one says there were three others besides Gallegos; others, including the Times, says there were three, including Gallegos) were drawn to the breaking in of the vehicle by an alarm coming from the vehicle. The three or four persons, leaving from a fraternity house, headed to and arrived at the vehicle with Cerf inside the vehicle.
At the time of arrival, Gallegos had a knife in his possession and one other member of the group had a wooden stick in his or hers. Upon arrival of the police, Cerf’s body was found away from the vehicle in question, but nearby, in an alley. He was pronounced dead at the scene by paramedics.
THE EVIDENCE
The OBJECTIVE Evidence : There was no gun or any other deadly force evidence found at the scene, that would provide Gallegos with a self-defense argument of use of deadly force to defend against the use of deadly force by Cerf. Therefore, Gallegos is left with the objective facts of Gallegos using deadly force, resulting in death, of an UNARMED Black man, who had been found and confronted breaking into a car. Based on the OBJECTIVE evidence, that is second degree murder. And, apparently, this is why the police and the District Attorney’s Office (D.A.) originally charged Gallegos with murder. That INITIAL decision was the CORRECT one.
The SUBJECTIVE Evidence : Gallegos, subjectively, stated that Cerf, after having enclosed himself inside the car, proceeded to open the car door and attempt to exit the vehicle. But, while doing so , he stated, “I have a gun”, and, thereafter, he reached for his waist, as he was exiting the vehicle. Then, Gallegos, believing that Cerf had a gun, grabbed Cerf’s hands with his left hand and stabbed Cerf 4 times in self-defense and in defense of the 2 or 3 people who were with him. The other 2 or 3 people apparently just looked on. Thereafter, Gallegos and his other fraternity mates allowed Cerf to somehow struggle and find his way to a nearby alley, where the police found him and the paramedics pronounced him deceased.
Gallegos’ fraternity mates basically supported Gallegos’ version of the facts.
Since Cerf is dead, he cannot dispute or contradict Gallegos’ and his fraternity mates version of the facts. So, he and his mother must rely on the objective facts.
The Prosecution’s Decision not to Prosecute Gallegos based on Gallegos’ Version of the Events
After originally charging Gallegos with murder, D.A. George Gascon reversed himself and decided not to charge Gallegos, based on Gallegos’s stated version of the facts, supported by Gallegos’s fraternity mates’ corroboration. This would usually be acceptable for a lesser crime, such as assault or battery, but not for murder, and, more specifically, not for the murder of an unarmed man, who had broken into a car, got caught, and was in the process of exiting the car when he was killed instead of held for police, i.e., vigilante justice. And, especially, where the subjective facts are questionable. See, infra.
WHY A JURY MUST DECIDE GALLEGOS’ GUILT OR NON-GUILT
Here, I will assume that the Gallegos’ case , after pre-trial matters, is submitted to a jury.
1. A jury might disbelieve Gallegos’ version of the facts in its entirety, and choose to believe that Gallegos killed Cerf, a Black male, out of racial animus, and offered and relied on his (Gallegos) version of the facts to camouflage the real reason for his stabbing Cerf to death. Gallegos stated that he carried a knife because “the area is dangerous and there have been several violent crimes committed against students.” And, therefore, a jury might find that Gallegos, instead of defending himself against Cerf, acted out of suppressed anger or bitterness, and seized on the opportunity to rid the community of another Black man breaking into cars or committing other crimes, thus, they might find Gallegos guilty of second degree murder.
2. Even if the jury did not choose to disbelieve Gallegos’ entire version of the facts, there are parts of his version of the facts that are questionable, and the jury could decide to find Gallegos guilty based on the questionable facts. That is, a jury may find that if a part of the facts is questionable, the credibility of all the facts is questionable. Here are a few of the questionable facts :
A. Gallegos purportedly stated that he “grabbed Cerf’s hands with his (Gallegos) left hand to prevent him from pulling out a gun while simultaneously stabbing him in the chest with his right hand.” The L.A. Times. If Gallegos grabbed Cerf’s hands, he had to have felt the area where a gun would have been, so he knew that there was no gun, yet, he stabbed Cerf anyway, four times.
B. When Gallegos grabbed Cerf’s hands, while discovering that there was no gun, even if he had stabbed Cerf once, why did he keep stabbing him, when he knew there was no gun. And, why didn’t Gallegos’ fraternity friends help subdue Cerf, as Cerf’s mother, Yema Jones, advocated during a television interview? Once Gallegos grabbed Cerf’s hands and stabbed him once, the other friends could have and should have intervened and helped subdue Cerf without killing him, before the remaining 3 stabs.
C. Regardless of what Cerf * is said to have said about having a gun, as Cerf was attempting to get out of the car, he could have been subdued before he could attempt to get his hands in position to fire a gun, especially since Gallegos said that he grabbed Cerf’s hands, both hands, which prevented Cerf from placing the gun in his hand and firing it. Yet, instead of at least 3 people present and prepared to prevent a car theft by perhaps subduing Cerf, two people watched as the other one stabbed a Black man to death, and watched as Cerf stumbled towards and into an alley to die. That, in itself, is evidence of malice.
Because of these and other questionable facts surrounding the killing of Cerf, a jury might find Gallegos’ and his fraternity friends’ version of the killing is not credible, and therefore, does not provide a defense for the killing of Cerf. And so, they might find Gallegos guilty of second degree murder.
3. A jury might give little or no credence or credibility to the corroboration of Gallegos’ fraternity friends because : (1) they ARE his friends, as opposed to independent strangers; and (2) they failed to intervene, at least after Gallegos’ first stab, when they knew Cerf was disabled and did not have a gun (i.e., Gallegos purportedly grabbed both of Cerf’s hands with his left hand and stabbed Cerf with his right hand), when they could have intervened but refused to do so.
Therefore, a jury should decide whether Gallegos is guilty or not guilty of the murder of Cerf. And, Attorney General Rob Bonta must overrule Gascon and re-instate or re-charge Gallegos with second degree murder.
Attorney General Bonta may consider this blogpost an argument on behalf of Cerf, his mother, Ms. Jones, and Cerf’s 3-year-old son, Anthony, for the re-charging of Gallegos with second degree murder.
I will send a copy of this blogpost to attorney general Bonta for his review.
**UPDATE—July 1, 2024
GALLEGOS’ ACADEMIC RECORD IS IRRELEVANT AS TO WHETHER OR NOT HE MURDERED CERF, OR WHETHER OR NOT HE SHOULD BE CHARGED WITH MURDERING CERF
In a televised commentary, attorney Mark Gerogos, who represents Ivan Gallegos, stated that Gallegos was an exemplary student and was on scholarship, as though those matters were decisive as to whether Gallegos murdered Xavier Cerf or not. But, those two matters are simply irrelevant in deciding whether Gallegos murdered Cerf, especially if the murder was the result of a hate crime. Cerf was a Black male. According to Orange County District Attorney Todd Spitzer , “In Orange County, we will not tolerate hate and any crime motivated by someone’s ethnicity or race will be prosecuted to the fullest extent of the law”. A jury might find that Gallegos’ killing of Cerf was because Cerf was Black, and that if Cerf was non-Black, Gallegos would not have killed him. Rather, he would have subdued Cerf and held him for the police. And that Gallegos’ subjective version of what happened is simply a cover-up for the murder, especially where no gun or other weapon *that may have been possessed by Cerf was found at the scene.
Gallegos should be charged with murder. And, a jury should decide whether he is guilty or not. *Attorney General Rob Bonta should order the re-charging of Gallegos with murder.
**UPDATE—August 11, 2024
APPARENTLY, IVAN GALLEGOS HAS LIKELY GOTTEN AWAY WITH MURDER
Since there has been no action by Attorney General Rob Bonta to overrule the decision of George Gascon not to prosecute Ivan Gallegos for the murder of Xavier Cerf, Gallegos has apparently, based on available and reported facts, and likely, gotten away with murder. Because there is no prosecution, we will never know whether Gallegos did it or not. That is the greatest injustice of all.
No comments:
Post a Comment