Monday, April 30, 2007

Heemstra Jury Verdict: Manslaughter

It's reported today that a jury in Montgomery County convicted Rodney Heemstra of the lesser offense of voluntary manslughter, a class C felony that could earn him a ten year jolt-considerably less than the previous sentence of life imprisonment for murder.

It was Heemstra's contention that he shot Tom Lyon in self defense in a confrontation that erupted over a piece of land that the two both wanted. Lyon had cattle on the land through a lease with the previous owner and Heemstra shut off the water for the cattle.

That led to a confrontation in which Heemstra walked back to his truck. loaded a rifle, and shot Tom Lyon in the head, killing him instantly. Then Heemstra dragged Tom Lyon's body behind his pickup truck and dumped it in an abandoned well and placed hay bales over it.

All this happened in January 2003, and because the lease was not being renewed, Tom Lyon would have had to have had his cattle off the land in March-eight weeks hence.

For that ill considered, rash, stupid and bloodyminded decision to pick up a weapon and settle a grievance at gunpoint, one man is dead, one will spend some years yet in prison, and two families are damaged beyond repair.

There is still the troubling evidence that Heemstra hid assets in an effort to evade the judgment in the wrongful death lawsuit that followed.

It is known, for instance, that when he was released from jail the first time, his steps took him to Wright County to sign over farmland that he had an interest in. He then spent the rest of the summer relaxing and was often seen water skiing on Lake Panorama.

And It's All On Tape, Part III

One dark night in March, 2001, Victor Harris thought he could outrun Coweta County, Georgia sheriff's deputy Tim Scott. That decision changed the lives of a number of people, including Victor, who will be considering that ill conceived decision long and hard that ended up costing him the use of his legs.

Harris was clocked speeding and took off down a two lane, reaching speeds in excess of 90 mph, passing cars, running red lights, colliding with a police cruiser and getting back out on the highway to again exceed 90 mph. Scott got permission to PIT the fleeing Cadillac but because of the speeds involved instead rammed the Cadillac which swerved off the road and crashed.

Harris was not belted in and received injuries that paralyzed him.

Harris later sued Scott, alleging that he'd violated Harris' rights under the 4th Amendment by ramming the Cadillac to end the chase. The lower court agreed, and this appeal followed.

Speaking for 8 of the nine justices, Justice Scalia pointed out that it was clear from the dash mounted video cam evidence that Harris' driving represented an actual and imminent threat to the lives of pedestrians, other motorists and the other police officers involved. Harris, Justice Scalia noted, intentionally placed himself and the public in great danger by unlawfully engaging in a reckless high speed flight that ultimately produced the choice between two evils that Deputy Scott confronted.

Although the opinion is not a total vindication of hot dog driving, it does place the responsibility of the bad results of a pursuit right where they belong-at the doorstep of the person who started the whole thing.

It's also yet more evidence if it is needed what the value of videotape equipment is. Had a clean videotape not been in existence this case might well have gone the way it went in the 11th Circuit Court of Appeals.

The opinion may be retrieved here.

Friday, April 27, 2007

Deferred Judgment Gets Yanked on Jensen

State v. Iowa District Court for Johnson County, no. 06-0203 (Iowa Apr. 27, 2007)

One David Jensen got plowed in a bar in Solon and was subsequently arrested for driving while intoxicated. When he blew for the record, Jensen scored a .170 on the DataMaster.
Duly convicted, Jensen was granted a deferred judgment over the state's objections and the clear import of Iowa Code section 321J.2(3)(a)(1) which prohibits deferred judgments when the defendant's BAC is over .150.

Experts testified that at the time of the driving Jensen would not have absorbed enough alcohol to exceed .150.

The Supreme Court held that the application of the statute did not depend on proof that the defendant's BAC exceeded .150 and that Jensen's interpretation of the statute would compel adding additional language "at the time of driving" to the statute, something the legislature did not do.

Court of Appeals Finds Way Around Crawford v. Washington

First, let your mind wander backto May of 2006 when yr. ob't. servant opined that a certain Justice Scalia seemed to have let his love affair with the confrontation clause prod him into declaring war on victims of domestic abuse. After you've refreshed your memory, consider

State v. Schaer, no. 05-0559 (Iowa Ct. App. Apr. 25, 2007)

Schaer beat his live in partner Bergan to a pulp, shattering the orbit of her left eye and leaving abrasions, bruises and numerous bite marks. Bergan identified Schaer as the assailant but later recanted. The state introduced statements from Bergan's stepsister, a nurse and a doctor at the hospital and a policeman who'd interviewed her.

Schaer invoked Crawford. v. Washington, stating that allowing these witnesses to testify as to out of court statements made by Bergan would violate Scalia's beloved confrontation clause.

The Court of Appeals reasoned that the statements that Bergan made to the witnesses were not testimonial in nature, but rather excited utterances and statements made for medical diagnosis and treatment and thus proper exceptions to the hearsay rule. The statement given to the police officer was not shown to have been made in the course of an interrogation.

It therefore seems that our Court has taken a closer look at the real world milieu of domestic abuse and has come down on the side of the angels rather than of Scalia.

The moral for officers is sound: let the victim tell her story. If your cruiser is equipped with video equipment, leave it running while you investigate and get all that good audio on tape with an open mic.

A tip o' the hat to Officer Jeff Dawson of the DMPD for explaining to me how this worked when he was a Winterset officer. Smart thinking Jeff.

And It's All On Tape, Part Deux

State v. Spates, no. 05-0926 (Iowa Ct. App. April 25, 2007)

Racardious Spates and his crew (L-Block) returned for a rematch of an earlier fight with another crew (the Hood). Spates and his crew were armed with weapons including an SKS rifle which Spates was carrying. A gunfight ensued and a fifteen year old girl inside the house was shot and killed by a bullet from an SKS rifle.

Spates and others were charged with first degree murder under a felony murder theory.

Proving that there is little solidarity among gangbangers when the fat's in the fire, members of the L-Block crew pled guilty and testified against Spates and his brother.

The state filed notice of its intent to use hearsay evidence in the form of a videotaped interview with a witness who subsequently recanted, and the videotape was admitted under the residual exception to the hearsay rule after a hearing on the matter. The witness interview tended to negate Spates' alibi defense.

Spates argued that the evidence was the only corroboration of the state's accomplice witnesses and attacked it on the basis of trustworthiness, necessity and the interest of justice.

The court of appeals found that the videotaped interview was trustworthy, that admission of it was necessary, and the evidence served the interests of justice. A series of other points on appeal were summarily dispensed with.

Now. Anyone think videotape equipment is too expensive or not worth the trouble?

And It's All On Tape.

State v. Dawson, no. 06-0390 (Iowa Ct. App. April 25, 2007)

Dawson was convicted of murder, assault with intent to inflict injury, and domestic abuse assault. Dawson beat and stabbed his girlfriend. He called 911 and stated he'd had his last fight with her and she was dead. When police showed up the videocam on the dash of the cruiser recorded these statements from the grieving Dawson:

  • I was tired of dealing with her
  • I stabbed her with my fucking knife. She's dead now.
  • That fucking bitch ain't gonna threaten me no more
  • Her psychiatrist can't help her now

Police found the girlfriend lying on the floor with a knife in her chest and she died en route.

Dawson argued a host of ineffective assistance claims in his pro se appellate brief.

The court found that even if there was anything to the ineffective assitance claims the evidence was overwhelming.

Dashboard cameras are a GOOD thing. They ought to be in every police car in the state without exception.

It Never Pays To Help A Defense Attorney Out In Fremont County

State v. Lewis, no. 05-2079 (Iowa Ct. App. April 25, 2007)

Lewis was charged with kidnaping, burglary, stalking, wilful injury, and so on on his former significant other on July 20, 2004.

An attorney was appointed and a deposition of the sig. other scheduled. The county attorney filed a motion alleging the defense attorney had a conflict of interest, stated she was ill and cancelled the deposition. The court appointed alternate counsel and continued the trial date until October 26, 2004. Another trial information charging Lewis with stalking was filed.

At pretrial on October 4, Lewis' attorney noted that the 90 day speedy trial period would lapse before the trial date, and that Lewis was not waiving the right. The court found that there was good cause to keep the October 26 date because of the previous attorney's illness and because the 26th was a regular court date.

On October 8 the sig other was deposed but ran out of the room. Lewis' attorney filed a motion to dismiss on October 21. At a hearing October 25, Lewis then waived his right to speedy trial.

A year later Lewis was tried on the minutes and convicted on burglary, stalking and assault.

Lewis appealed the decision of the trial court finding good cause for delaying the trial.

The court of appeals agreed, finding that neither a change in counsel or that counsel needed more time to prepare for trial were sufficiently good reasons to continue the trial. However, Lewis was convicted on the subsequently filed stalking charges.

The lesson for tyro prosecutors here is clear. It's the defendant's problem here.

Friday, April 13, 2007

Dallas County Confidential

It's reported by WHO that Brian Gilbert, former sheriff of Dallas County was convicted by a Pot County jury of theft-first degree.

It appears that an Audi was stopped on the interstate last year and it was carrying about $1,000,000 in cash. Gilbert was to drive the Audi back to the impound lot and in so doing he stopped by his house to close the garage door and a bundle of cash went missing.

The people with the Audi said "Don't look at us. It ain't our money!" and they were sent on their merry way with a lift to the bus station. Which seems passing strange when you think about it, really.

Gilbert was charged, there was a lot of publicity, he got a change of venue and ended up in a county in which he had no expectation that he might have a sympathetic face in the jury pool. I personally think that in a state like Iowa, asking for a change of venue is very much a roll of the dice. You seem to end up in Pot, Blackhawk, or Scott counties, and none of them are particularly friendly places.

But it doesn't end there. Deke Gliem, long time jail administrator is slated to go on trial soon for taking....ahem....liberties with the inmates.

Let us all hope that this closes a chapter in Iowa law enforcement that should not have been written in the first place.

One can only speculate where in the world county attorney Wayne Reisseter has been, that these matters ever got as far out of hand as they did.

That's a question worth asking, no matter who you are.

Bosendorfer Down

The Telegraph reports that a nonprofit group in Britain spent two years raising over $51,000 or $88,000 (depending on which story you read) for a Bosendorfer grand piano, and then the blessed day arrived when the Bosendorfer would take up residence.

As the delivery truck arrived, all hearts were a-twitter in anticipation of the blessed event.

Then the unthinkable happened.

As la Bosendorfer was being unloaded from the delivery van it caught on the aft end of the truck, did a one and a half gainer, and ended up face down in the driveway. Mrs. Adie, one of the fund raisers said it made a sound like ten honky tonk pianos being hit by mallets.

To add insult to injury a local farmer had to be called to lift the remains back in the truck with a backhoe.

I know, I know, you're saying "B-b-but Sparky! This is supposed to be a law enforcement blog."

Yes it is...but this is hilarious.

Photo credits to the Telegraph. Sorry I couldn't call fellows but this was too good to miss.

Tuesday, April 03, 2007

Taking DUI To A New Level

The Sun reports this morning that cops boarded a Virgin Atlantic Airbus A340 Saturday that was preparing for departure, breathalyzed the pilot and led him off in cuffs to the horror of more than 300 passengers. The flight VS003 was slated to depart for New York on Saturday morning.

It is said in the article that the BAC level for pilots is 9 mcg/100ml as compared to the driving level of 35 mcg/100 ml. However, I checked that and I believe that there is a typographical error. According to my best information the driving level in the UK is 80 mg/100 ml or .08 per cent BAC.

Any way you slice it a tilted pilot is in the wrong line of work. Scratch one $150,000 a year job.