Patterico's Pontifications

11/17/2009

A Mississippi Court of Appeals Case

Filed under: General — Patterico @ 7:29 pm



Defendant kills cop. He moves for a change of venue, arguing that he can’t get a fair trial where the cop was killed, because the cop was the son of the police chief. He presents two affidavits from witnesses saying that “because there was a bias of the public to the facts of the case and there was ill will” toward the defendant, the defendant “could not receive a fair trial” in the county where he killed the cop.

Defendant successfully has the venue changed from County A to County B, which was a county suggested by the defendant.

Two months before trial, defendant seeks to move the trial back to County A. Turns out a lawyer in County B has told defendant’s lawyers that “it was doubtful that an impartial jury could be impaneled” in County B.

The court, apparently believing it lacked authority to send the case back to County A (where the affidavits had claimed the populace was biased against defendant), instead moves the trial to County C. Defendant makes no complaint about the case being moved to County C — until he is convicted, at which point he raises the change of venue issue.

The defendant raises many other issues in the appeal, all of which are soundly rejected by the court of appeals. But the court reverses based on the change of venue, saying that the defendant had a right to be tried where the crime happened, absent some justification offered by the trial court. And the trial court did not expressly say that he did not want to return the case to County A because he didn’t think defendant could get a fair trial there.

Judgment: reversed for new trial.

That is the essence of an opinion I read today (.pdf) from the Mississippi Court of Appeals.

A de facto member of the defense team is pleased — because, he says, pretty much everyone in County A now knows about this case, and opinions are split along racial lines. So, it’s looking like a hang at worst.

106 Responses to “A Mississippi Court of Appeals Case”

  1. I read Reason.com every day, and Rodney Balko is one of my favorites.

    I read Patterico every day, also one of my favorites.

    This constant fighting is forcing me to think critically. I don’t like that. I read the intertubes just to confirm my biases. Both of you, please stop.

    TomHynes (2e563b)

  2. IANAL, so this does not make sense.

    Maye claims by way of change of venue that he cannot get a fair trial in County A, and requests County B. After being granted same, he then hears that maybe County B is not so great, so he requests another change of venue. Since he has already said County A is not a viable choice, he is given County C. He is then convicted in County C. Then he appeals based on the venue saying that he should have been tried in County A, the original place that he said he could not get a fair trial?

    JD (9769aa)

  3. Almost, JD. But when you say he “requests another change of venue” it’s more specific than that. He requests to have venue shifted back to County A.

    There’s also confusing language in the opinion talking about moving it to another county with a similar racial makeup as County A, making it sound like perhaps the request to move back to County A wasn’t as unequivocal as the majority (there is a dissent) portrays it. But I don’t know what to make of that language.

    Patterico (64318f)

  4. So, he requested to be moved back to County A, the County that he originally claimed, and the Court concurred, he could not get a fair trial in?

    JD (9769aa)

  5. What happened in County A between the time that he claimed that they were all closed-minded morons unable to think for themselves and when he requested that the same closed-minded morons try him for his alleged crime?

    JD (9769aa)

  6. So, he requested to be moved back to County A, the County that he originally claimed, and the Court concurred, he could not get a fair trial in?

    Correct. This is the basis for the Court’s reversal: that he was not returned for trial to that county.

    I believe we are supposed to applaud this. Please fall in line.

    Patterico (64318f)

  7. Mr. Instapundit is all in on Team Maye. He’s not a particularly bandawagony type neither, so there’s that. It goes a good bit far really.

    happyfeet (b919e7)

  8. Correct. This is the basis for the Court’s reversal: that he was not returned for trial to that county.

    The same County that he originally argued, and the Court concurred, could not give him a fair trial?!

    JD (9769aa)

  9. He’s not a particularly bandawagony type neither, so there’s that.

    Not generally. However, he is a big fan of Balko and is quick to link any story that alleges abuse by police and/or prosecutors.

    Patterico (64318f)

  10. The same County that he originally argued, and the Court concurred, could not give him a fair trial?!

    Yes. That county.

    Please applaud the decision, JD. I asked you once.

    Patterico (64318f)

  11. That’s true. He does no-knock raids like Drudge does crazy cat lady.

    happyfeet (b919e7)

  12. Golf clap, with a big Bud Adams salute to the lawyers and judges involved. What could possibly go wrong with trying KSM Hairshirt in the NY civil courts?

    JD (9769aa)

  13. And people wonder why trial lawyers rank down there with politicians and mediacritters.

    JD (9769aa)

  14. There were far more significant problems with the case than this ludicrous basis for a new trial.

    It is a mind-bogglingly stupid appellate opinion separate from the underlying merits of the case. Sounds like a pretense in fact.

    SPQR (26be8b)

  15. SPQR – Is this that one that Balko has been crusading about?

    JD (9769aa)

  16. I’m grateful for the opinion simply because I can finally now see the prosecution’s case, rather than read only the characterization of the case made by Corey Maye’s defenders. Still reading, so I haven’t made up my mind, but there’s clearly more evidence against Maye than is usually explained by his defenders like Balko.

    PatHMV (a00c3c)

  17. Still reading, so I haven’t made up my mind, but there’s clearly more evidence against Maye than is usually explained by his defenders like Balko.

    You don’t usually get both sides of the story from the defense.

    Patterico (64318f)

  18. Oh, I’m well aware of that, and I’ve looked for the other side of the story (granted, not in-depth searching, but basic Googling). As you know, prosecutors have much less leeway to discuss the specifics of their past convictions publicly than do the Balkos and the defense attorneys of the world, so it’s much harder to get that side of the story, outside of appellate opinions.

    PatHMV (a00c3c)

  19. And yes, I agree that in this case, Balko has taken on the role of defense counsel, rather than impartial observer and identifier of injustices.

    PatHMV (a00c3c)

  20. What happened between March ’03 and May ’03 that changed the county from being unable to fairly try the defendant, to the preferred choice of the defendant?

    JD (9769aa)

  21. There were far more significant problems with the case than this ludicrous basis for a new trial.

    Can you tell me what trustworthy sources I can read that would support that statement? I’m not saying you’re wrong, I’m just asking the question.

    Patterico (64318f)

  22. Patterico

    Am I to assume you believe Maye is guilty? And the original verdict was just?

    Just asking.

    Brad (9d40d9)

  23. I am happy Maye got a new trial. I am also a father, for the time being alone, caring for a little girl, and if somebody kicks down our door in the middle of the night ….

    nk (df76d4)

  24. “And people wonder why trial lawyers rank down there with politicians and mediacritters.”

    Yeah, but you have to keep those guys around so child molestors will have somebody to look down on.

    Dave Surls (5b4b9b)

  25. I don’t think it’s fair to blame the defense lawyer for this conviction. The dead man was a young police officer, the son of the police chief. That’s a horrific disadvantage. And I imagine there was tremendous pressure on the prosecution and court too to get a hanging verdict.

    nk (df76d4)

  26. If I understant this correctly, it should be characterized as “Cop dies trying to kill an innocent man.”
    Or, “Cop dies busting in on an innocent man on account of his father’s police department doesn’t give a shit about doing their homework or much of anything else.”

    Richard Aubrey (e3c94f)

  27. I always had the conceit that had I been Timothy McVeigh’s lawyer, I would have got him acquitted. And definitely not by moving the trial away from the sensible citizens of Oklahoma to some skiing hippies and illegal aliens in Denver.

    nk (df76d4)

  28. Granted the appeals court doesn’t address all of the issues but those they do address slams a good chunk of Balko’s claims that Maye was framed/set up/railroaded/screwed/etc./etc. Something to keep in mind if/while reading Balko’s screeds against no-knock raids.

    Question: Maye’s death sentence was previously overturned. Does Maye winning a new trial give the state another crack at executing him? A tad ironic if it does.

    steve sturm (369bc6)

  29. In Illinois, it would not, but I don’t know what Mississippi’s constitution provides. In the federal system there is no protection — be prepared to pay the appeal penalty.

    nk (df76d4)

  30. Am I to assume you believe Maye is guilty? And the original verdict was just?

    I have no idea. I have never read anything about the case that was written by someone whom I felt I could trust to give me the important facts on all sides. The closest I have come is this court decision.

    I know we’re supposed to take it as an article of faith that he is innocent, but I just want to know how we’re supposed to know that.

    Patterico (64318f)

  31. I know we’re supposed to take it as an article of faith that he is innocent

    actually, we’re supposed to conclude that while he did kill the police officer (no dispute on this point), he is not criminally liable because the police are bad people using bad tactics in enforcing unjust laws.

    steve sturm (369bc6)

  32. actually, we’re supposed to conclude that while he did kill the police officer (no dispute on this point), he is not criminally liable because the police are bad people using bad tactics in enforcing unjust laws.

    I can’t tell whether your tongue is in cheek here, but I think you’ve accurately summarized the view of many. Whether Maye actually knew the guy was a cop when he fired seems, for some, secondary.

    Patterico (64318f)

  33. which is more likely, a man with no criminal history, who had committed no crime, “opened the blinds and looked out “, seeing “marked police cars” “directly in front of the duplex” and hearing the police identifying themselves, but deciding to shoot anyway, OR a man startled out of a sound sleep by pounding on his door, and defending his child from an unidentified intruder storming into his home?
    To me the likelihood of a BS warrant, that went south, and an incompetent police force reporting that the warrant was executed exactly according to procedure to cover their own asses. It seems that anytime there is a conflict between what a citizen reports and what the police on scene report, the police claim that they did everything precisely as they are required. Like a DUi stop where every arrest reads like the manual “glassy eyes, slurred speech”and so on, nothing that can be proved later, of course, just the officer on scenes judgement and opinion.
    So yes, a man with no reason to attack police did so, but a half-assed ad hoc swat team performed perfectly, and are in no way trying to cover up. right. it’s the Kathryn Johnston incident all over again, only this citizen was lucky not to have been killed.

    thatguy (eb09ed)

  34. it’s the Kathryn Johnston incident all over again

    The small amounts of marijuana found in his apartment (per the opinion) are a nice touch, too.

    nk (df76d4)

  35. I smell a rat!

    ropelight (b226de)

  36. Clearly, thatguy is approaching this with an open mind.

    JD (9d466a)

  37. my mind would be more open if there was any hint of motive, and had this not been a recurring theme nationwide. The proliferation of paramilitary police procedures nationwide is a dangerous thing. Police departments love dressing up in black and playing with military toys, but a swat team, as originally envisioned was for major incidents, hostages, attacks, and so on. Every little police force wants to pretend they are Delta Force though, so they need all the toys. But hey, someone looks at the budget, asks why this unit is being paid for, and its never used, and presto, swat starts going out on warrants, both real and BS.

    thatguy (eb09ed)

  38. I haven’t read the opinion, but once he moved for a change of venue from County A, hasn’t he waived his right to be tried there, regardless of what happened with County B or C?

    Rochf (ae9c58)

  39. which is more likely, a man with no criminal history, who had committed no crime, “opened the blinds and looked out “, seeing “marked police cars” “directly in front of the duplex” and hearing the police identifying themselves, but deciding to shoot anyway, OR a man startled out of a sound sleep by pounding on his door, and defending his child from an unidentified intruder storming into his home?

    I don’t know. There was a trial where all the evidence was presented. The defense theory, I assume, was argued and rejected.

    Was the trial result wrong? I don’t know — but to conclude that, I would have to read something indicating it from a source I trusted.

    I wonder whether this is a fact-specific argument or a categorical approach — i.e., for Maye’s defenders, can they imagine any situation where they would find someone guilty for firing on cops serving a search warrant?

    If the answer is no, then it’s open season on cops serving search warrants. Whether or not you know they’re cops is beside the point. Which is probably fine in some people’s minds, I guess.

    Patterico (64318f)

  40. I haven’t read the opinion, but once he moved for a change of venue from County A, hasn’t he waived his right to be tried there, regardless of what happened with County B or C?

    Yes. But the court says he can withdraw his waiver and reassert his right, absent some justification offered to refuse the withdrawal of the waiver. No justification was articulated — even though the reason seems evident. And Maye never complained until after the verdict.

    Patterico (64318f)

  41. it’s open season on cops serving search warrants

    That is a vey unfair characterization, Patterico. It was his home and his fourteen-month old baby girl.

    nk (df76d4)

  42. That is a vey unfair characterization, Patterico. It was his home and his fourteen-month old baby girl.

    Please read again what I wrote. IF you cannot imagine any situation where you would find someone guilty for firing on cops serving a search warrant, then it’s open season on cops serving search warrants.

    THAT is what I said. It’s not an unfair statement. It’s almost a tautology.

    Patterico (64318f)

  43. Patterico, there are people who think that there are gray areas between the black and white positions of Balko et al and the prosecution of Maye.

    SPQR (26be8b)

  44. Patterico, lets say that things happened exactly as the police say they did. i would find him guilty if he knew it was a cop breaking in.
    but yes, if a stranger smashes in the door of your house in the middle of the night, and you have no idea who it is? Shoot first. i would. it doesnt matter if it a cop serving a warrant, when you have no expectation of a warrant being served on you, ie, committed no crime, like Mr. Maye, then the safest assumption for the protection of ones family is that the violent stranger means you harm.
    I simply do not believe the reports from the police, that Mr. Maye looked out the window, saw marked cruisers, heard clearly identified police officers serving a warrant, and chose to fire anyway. He had no reason to, no motive. I’d be willing to even believe that the police MIGHT have announced themselves as cops, once before kicking in the door, but let me ask you something, If someone stood next to your bed in the middle of the night while you were sleeping, and yelled “PEPPERONI PIZZA!” would you be able to identify that the man was a delivery boy from Dominos, or would you merely be shaken out of sleep by a loud noise? So, hypothetically, perhaps he was awakened by shouting, and ran to protect his child. But the “moved blinds” nonsense is just the type of fact a cop trying to cover his ass would invent.

    thatguy (eb09ed)

  45. Patterico, there are people who think that there are gray areas between the black and white positions of Balko et al and the prosecution of Maye.

    Obviously there are. I’m not disputing that. You’re obviously one of them.

    I’ll ask again the question you did not answer: where can I go to read something trustworthy about this?

    Patterico (64318f)

  46. No, I would not shoot on police serving a search warrant, if they executed it by knocking on my door, in daylight. Not even when they were stealing the pearls I bought my wife in 1991, or the amber I bought her in 1995, or the platinum crucifix my daughter’s godmother gave her at her christening.

    Although I think I would waive closing arguments with you, were we ever opposed.

    nk (df76d4)

  47. nk
    Are those hypotheticals, or did you really get relieved of your goods by agents of the state?

    Richard Aubrey (a9ba34)

  48. That’s a challenge I’ve not the solution for, Patterico. The story on this one has been too poisoned by Balko’s credibility issues.

    SPQR (26be8b)

  49. My clients did. It’s a recurring theme in Chicago, Maxwell Street Vice Squad. On my case, it was a federal prosecution and one guy got life. Just now, it was a Cook County case and they all got off with a slap on the wrist.

    nk (df76d4)

  50. Recurring theme nationwide, thatguy? Kind of like lightning strikes? Call everyone that does not agree with you a boot-licking authoritarian, and you will have covered all the bases.

    JD (aad7c1)

  51. actually, I’ve never resorted to name calling. and lightning strikes are a natural occurrence, botched swat raids and police malfeasance are actions of men, with free will. nice try though.

    thatguy (eb09ed)

  52. I will say that I was very peripherally involved in a case of police killing an unarmed man ( non-suspect ) in executing a warrant. One of the things that colors my reaction to this case is the difference in attitude among police to that “mistake” versus the possibility that Maye’s action was a mistake.

    Colors very strongly.

    SPQR (26be8b)

  53. “Please read again what I wrote. IF you cannot imagine any situation where you would find someone guilty for firing on cops serving a search warrant, then it’s open season on cops serving search warrants.

    THAT is what I said. It’s not an unfair statement. It’s almost a tautology.

    It’s also completely irrelevant to the case of Cory Maye, so I wonder why you would say it. Either he was justified in shooting the officer or he wasn’t. A jury said he wasn’t. I’m at a loss as to understanding why you are defending your position in the way you are; you seem almost to feel guilty about not agreeing with Maye’s defenders, so you have to twist yourself up into knots about “open season on cops serving warrants” or some other nonsense that’s right out of left field that has nothing to do with Maye’s case. Either he was justified or he wasn’t. “People’s” attitudes about police and marijuana laws and marijuana law enforcement aren’t as relevant as they are being made out to be both by you and by the people disagreeing with you here in this comment threat. The police broke into his home. They had a warrant. Either they properly identified themselves and he knew they were police or should have known and he’s guilty, or he had no idea they were police and isn’t guilty. Fairly simple, far more simple than both Balko and you are making it out to be.

    chaos (7ec2b0)

  54. Seems as if there are maybe four possiblities.
    1. He knew they were cops and shot anyway.
    2. He didn’t know they were cops because they didn’t identify themselves before the shooting started.
    3. They did identify themselves, but he suspected they were criminals pretending to be cops.
    4. Um. Maybe I was optimistic.

    Seems that a nice knock on the door on a pleasant early afternoon would have been better all around. Cops hardly ever get shot doing that.

    Richard Aubrey (a9ba34)

  55. First, I support law enforcement, right after the rights of citizens to be protected from official misconduct.

    Cops, crooks, drunks, terrorists, bail bondsmen, newspaper reporters, encyclopedia salesmen, or dog catchers, anyone who breaks down a door in the middle of the night, has to expect they may be met with force, including deadly force. That’s an undeniable fact.

    Americans have the right to be secure in their homes, secure from unreasonable searches, and while breaking down doors can be reasonable in some very limited and clearly defined situations, the practice has been repeatedly abused, done without proper authorization, done in gross error, and done for the wrong reasons.

    Consequently some few innocent citizens trying to protect themselves have been murdered under color of authority. The merely wounded are frequently charged with attempted or actual murder to cover for gross police misconduct.

    Too often, cops have been met by armed citizens fearing for their lives, defending their homes and families. So too have criminals resorted to deadly force resisting legal authority. How does anyone know which is which? Evidence found in the home helps point in the right direction, unless it’s planted after the fact to cover for a botched job, which has happened too often to be ignored, and can’t be taken at face value.

    Clearly, the burden is on the judicial system to get it right. The cops are heroic when they assault a rat’s nest of criminals knowing they are likely to be met with gunfire and worse. In such cases speedy entry is reasonable and proper. Crooks resisting arrest get what they deserve, and cops know the dangers going in only too well. That’s not to say the criminals shouldn’t be prosecuted for resisting, they should feel the full weight of the law, in spades.

    But every time the cops get shot by a panicked resident, or they shoot an innocent citizen I wonder why it is that traffic cops will back off when a fleeing driver recklessly endangers others on the streets and highways, yet cops still insist on using no-knock warrants to break down doors without taking the time to make damn sure they aren’t endangering children, a spouse, visitors, and innocents.

    Unfortunately, I suspect the answer is the likely presence of cameras and eye witnesses.

    ropelight (b226de)

  56. “…yet cops still insist on using no-knock warrants to break down doors without taking the time to make damn sure they aren’t endangering children, a spouse, visitors, and innocents, or insuring that they’re at the correct address!

    Thought that needed a little enhancement.

    AD - RtR/OS! (1397fe)

  57. or ensuring that they’re at the correct address!

    Thought that needed a little editing.

    steve sturm (369bc6)

  58. why it is that traffic cops will back off when a fleeing driver recklessly endangers others on the streets and highways

    Because it is (usually) department policy that they do so.

    break down doors without taking the time to make damn sure they aren’t endangering children, a spouse, visitors, and innocents.

    I have been on neither end of a raid but I’m willing to bet the police don’t go in shooting, any shooting is in response to what they perceive as a threat. If the targets don’t present themselves as a threat, there’s no shooting. So who is endangering innocents, the police or those who cause the police to fear for their lives?

    steve sturm (369bc6)

  59. I would refer you to a wrong-address no-knock (with info from a CI that was so dirty, nobody wanted his identity brought up) that happened in suburban San Diego about 20-years ago, plus the raid by the Ventura Co. (CA) Sheriff’s Dept on a Malibu mountains ranch about 15-years ago –
    but those are just off the top-of-my-head, and No!, I don’t have links.

    …and thanks for the “e”, I’ve been missing quite a few of those this morning.

    AD - RtR/OS! (1397fe)

  60. 59
    I think the Malibu shooting was because the county wanted the guy’s property for a park.
    Civil forfeiture and so forth.

    Richard Aubrey (a9ba34)

  61. Patterico – I am in the same bind. I need a reliable source for info.

    I am concerned about what seem to be legitimate arguments for the defense namely:

    1) The medical examiner. I’m curious about my inability to locate any defense of this guy’s credentials/credibility. On their face, the attacks seem credible.
    2) The conduct of defense counsel seems questionable. Again, I can find absolutely nothing that would support a conclusion that she was competent.
    3) There are some factual issues I can’t nail down. Was the defendant in fact in his child’s bedroom when he fired? Who and where is the ‘informant’? (OK, the officer who was killed was the one who got the warrant – so it’s possible only he knew the identity – but I still need/want more than possible.) What facts justified the nighttime forced entry? Were they spelled out in the affidavit for the warrant? Did the judge authorize the entry? Why the rush to put together an ad hoc ‘swat’ team?

    If you find a reliable source, please let us know. There is enough here to raise the eyebrows of this ex-cop, libertarian.

    Robert N. (070cb0)

  62. OTOH – the rationale for the new trial is almost farcical. Could it be that the appellate court felt the entire case failed the smell test and looked for a result that would cause the least upset for the entire system?

    Bad cases make bad law. This just might be an example.

    Robert N. (070cb0)

  63. Steve, would you “present yourself as a threat” to a rude stranger bursting into your home unannounced in the middle of the night?
    I make the point that it is the absolute duty of a father to do exactly that when an unknown person is even potentially threatening his child.

    thatguy (eb09ed)

  64. AD, the Malibu raid was NOT by Ventura County Sheriff department ( a dept that was top notch while I resided in its jurisdiction, and a refreshing contrast to LASD and LAPD ). It was LASD crossing the county line to Ventura County because they not only had bad info, but could not read a map.

    SPQR (26be8b)

  65. Robert N,

    I believe that Patterico has done several posts on the doctor who performed the autopsy on the dead police officer. They are not laudatory…

    Dave in OC (338443)

  66. Comment by SPQR — 11/18/2009 @ 10:27 am

    Correction noted…though I seem to recall that Ventura Co. put in dibs on the property after it was seized…something about a Tactical Training Center?
    …and, the owner was still dead!

    AD - RtR/OS! (1397fe)

  67. #58, ss, say what?

    How about this, while the police are breaking down the door, an alarmed resident wakes up with the shock of hearing his front door shatter. As he grabs for his father’s old service revolver from the nightstand he recalls reading about the latest violent home invasion in his neighborhood. He only has time sit up in bed before several guys dressed in black and wearing face masks rush into the bedroom screaming at him and shining bright lights in his eyes. They see his gun and open up.

    Who endangered who?

    ropelight (b226de)

  68. Dave – thanx. Being relatively new here I’m not up on past posts. Can ya’ gimme some kinda’ hint where they can be found?

    Robert N. (070cb0)

  69. Robert google – “(doc’s name) site:patterico.com”

    thatguy (eb09ed)

  70. Thatguy – thanx, I clearly forgot to put grey matter in gear before applying fingers to keyboard. (Or just too damn lazy to do my own work.)

    Robert N. (070cb0)

  71. This case is a great example of why integrity counts.

    Balko’s been caught playing loose with the facts before, and yet this is such a compelling case… when I read Balko’s account of it. While this appeal and ruling are simply crap, I want justice to be done correctly. If Balko’s version of the facts is correct, I don’t think Maye should be in prison. But it’s so hard to keep trusting Balko, after he’s been willing to basically commit fraud when attacking police before.

    I also think there’s a substantial confirmation bias that has led many to think there’s a rising epidemic of awful warrants. I want the police to face a lot of scrutiny, and I think Balko is simply the wrong guy to trust to do it.

    He can’t get his integrity back, even if he’s right in this case.

    Dustin (bb61e3)

  72. I don’t think there’s a rising epidemic, but there does appear to be just too many breakdowns in the system.
    There needs to be more rigor applied to the process to minimize the numbers of the collateral damaged.

    AD - RtR/OS! (1397fe)

  73. Cory Maye shot people who were breaking into his home. There is no way that such a thing is murder.

    If he is a murderer, then the cops who broke into the home of Pedro Navarro-Oregon back in 1996 are also murderers. Why have they not been prosecuted?

    Michael Ejercito (6a1582)

  74. If someone is breaking in to your house, you have the option of shooting first and asking questions later. If you do, you run the risk of being convicted (if you’re still alive) if you opened fire on the police unless you can persuade the jury that they didn’t identify themselves or that they were rogue officers or something along those lines, but I believe the burden is going to be on you. Good luck with that and especially if the cop you kill is the police chief’s son. On the other hand, if you hold fire, you’re probably safe from the police (except to the extent you are guilty of whatever they’re searching for) but at some risk if the invaders are criminals. Comes down to, ask Clint once asked, how lucky do you feel?

    steve sturm (369bc6)

  75. steve sturm, and you think the right to self defense should be predicated on luck?

    SPQR (26be8b)

  76. If you’re robbing a bank and the police start shooting at you, do you get to shoot back in self defense? the principle of self-defense doesn’t give you the right to shoot at police carrying out their lawful duties.

    And the jury found that Maye did just that.

    steve sturm (369bc6)

  77. BTW – the above does not mean I think the excuse the appellate court used to grant a new trial is any less egregious.

    Robert N. (070cb0)

  78. Caught up (sorta’) on this mess. Provisional conclusion – damn how I wish there was just one authority involved to whom I could assign some reasonable level of credibility – which means this is one mell of a hess. I think the defense a la Balko et al have sufficiently muddied the waters so that Maye is entitled to a new trial.

    Cops too likely covering butt, medical examiner questionable at best, defense did damn all to unf..k her client (likely found herself over her head, knew it, too arrogant to admit it, then just stumbled around in the dark bumping into sharp thingees).

    One more thing that bothers me – why the death penalty? OK, victim was cop, but still and all this was the guy’s home and daughter (talk about mitigation)! What kind of ‘local environment’ or ‘weight of evidence’ am I not finding that explains it?

    Robert N. (070cb0)

  79. Why did ‘the above’ get posted as the ‘below’? garrumph and other mumbled disgruntlements.

    Robert N. (070cb0)

  80. AD, I agree. This is a sobering problem.

    If Maye’s story is accurate, then I agree with Ejercito.

    But I think that’s what a jury is for. Balko’s name is mud, so I don’t know what to think. The problem that Maye describes, however, is easy to talk about.

    Steve’s right, whether this was a no-knock raid or not, and whether the police had a good tip or not, if Maye knew he was shooting at cops, he was guilty. That’s the question.

    I am fed up with police abuses… I’ve seen more and more of them lately, thanks to youtube and camera phones. I don’t think they are on the rise… I even think they may be falling considerably now that cops know they are being watched. But I am also fed up with people killing cops.

    Dustin (bb61e3)

  81. One assumes that if he had been found not guilty in County C, then he would not be complaining, so this just encourages bizarre forum shopping. Move for change of venue multiple times on the basis of bias, or whatever, get a bad result and then proceed to attack the venue on the basis that you should have been tried in the venue that you complained about in the first place.

    Has Mississippi now become Biazzaro World?

    Rochf (ae9c58)

  82. One assumes that if he had been found not guilty in County C, then he would not be complaining, so this just encourages bizarre forum shopping. Move for change of venue multiple times on the basis of bias, or whatever, get a bad result and then proceed to attack the venue on the basis that you should have been tried in the venue that you complained about in the first place.

    Has Mississippi now become Bizzaro World?

    Rochf (ae9c58)

  83. I think no. 62 has it right–the case had a bad smell to it and the venue argument (whether good or not) was the most convenient tool to get the case back to a new trial. Yes, bad law to correct for a possibly bad result, but in this case probably not a ruling which will have much adverse effect in the future. I think a death penalty result when the cops broke into Maye’s house is pretty indefensible. There are some suggestions that the defense counsel was incompetent but Maye will probably be much better represented next time through. Indeed I wouldn’t be surprised if the result is a manslaughter plea with a sentence for time served.

    PLM (3585fb)

  84. If there was a bad smell, why would the appeals court have gone through the trouble of knocking down many of the defense’s objections? perhaps you have it backwards, the case was good, but the court had to reverse on venue and wanted to signal its support for the finding of guilt?

    steve sturm (369bc6)

  85. If you’re robbing a bank and the police start shooting at you, do you get to shoot back in self defense? the principle of self-defense doesn’t give you the right to shoot at police carrying out their lawful duties.

    Was Maye robbing a bank?

    Michael Ejercito (6a1582)

  86. Ejercito, robbing a bank or not, a jury of his peers, after a fair trial, say he committed a crime. Why did they do that?

    Dustin (bb61e3)

  87. Also, that was a hypothetical explaining why you don’t have a right to shoot at cops, even if they are acting provocatively. It’s a central point that you probably realize applies, even if Maye was not robbing a bank.

    If Maye knew they were cops, then it doesn’t matter what he was doing.

    Dustin (bb61e3)

  88. chaos,

    You claim that it is “completely irrelevant” to the Maye case for me to wonder whether his defenders can envision ANY case where they would vote to convict someone who shot at cops executing a search warrant. As Exhibit A in support of the relevance of my musing, I refer you to Michael Ejercito’s comment 73, which begins:

    Cory Maye shot people who were breaking into his home. There is no way that such a thing is murder.

    Do you now see the relevance of my question? I was wondering whether Maye’s defenders are all judging this case on the facts — i.e. on the evidence that proves or disproves that he knew he was shooting at cops — or whether some might be judging the case instead based on some generalized belief that NO shooting of a cop executing a warrant can be considered murder.

    Ejercito’s comment shows that such defenders do indeed exist — so my comment was not irrelevant.

    The police broke into his home. They had a warrant. Either they properly identified themselves and he knew they were police or should have known and he’s guilty, or he had no idea they were police and isn’t guilty. Fairly simple, far more simple than both Balko and you are making it out to be.

    With one small quibble (which I will address in a moment), that’s precisely how simple the issue is. And I challenge you to prove that I have said anything different.

    The only way you have stated the issue incorrectly is that I do not believe it is enough to show Maye “should have known” they were cops. He has to have *known.*

    But just because the issue is simple doesn’t mean the conclusion is. There was a trial over this, with (I assume) much conflicting evidence presented both ways. What I see is blog commenters who didn’t hear the evidence at trial, but are convinced that an injustice occurred. I don’t know whether an injustice occurred, and the main reason is that I have never read anything about the case from a source that I trust that establishes an injustice.

    I have asked for a source in this thread and I do not believe I have been provided one. Instead, I have been told: “Well, all I know is what I read from Balko — and sure enough, he’s been caught bending the truth to the breaking point on several occasions . . . but still, I believe what I believe!”

    I’m not content to draw conclusions because it’s what most bloggers seem to believe is true. I’m looking for a source I can trust. Does anyone have one?

    Patterico (64318f)

  89. Richard Aubrey says:

    Seems that a nice knock on the door on a pleasant early afternoon would have been better all around. Cops hardly ever get shot doing that.

    Sez you. When I read your comment I instantly thought of Los Angeles County Sheriff’s Deputy Jerry Ortiz:

    Baca, who was attending a law enforcement conference in Kentucky, said in a telephone interview that Ortiz had knocked on the door of a residence and begun talking with a woman who answered. Officers said the gunman approached from behind the woman, reached over the shoulder of another man Ortiz was talking to and shot the deputy point-blank in the face. The suspect fled after the shooting.

    Yeah, I know, you said “hardly.” But Ortiz’s death is “hardly” the only one of its kind.

    Patterico (64318f)

  90. This case is a great example of why integrity counts.

    Balko’s been caught playing loose with the facts before, and yet this is such a compelling case… when I read Balko’s account of it. While this appeal and ruling are simply crap, I want justice to be done correctly. If Balko’s version of the facts is correct, I don’t think Maye should be in prison. But it’s so hard to keep trusting Balko, after he’s been willing to basically commit fraud when attacking police before.

    I also think there’s a substantial confirmation bias that has led many to think there’s a rising epidemic of awful warrants. I want the police to face a lot of scrutiny, and I think Balko is simply the wrong guy to trust to do it.

    He can’t get his integrity back, even if he’s right in this case.

    This is well said.

    Patterico (64318f)

  91. Do you now see the relevance of my question? I was wondering whether Maye’s defenders are all judging this case on the facts — i.e. on the evidence that proves or disproves that he knew he was shooting at cops — or whether some might be judging the case instead based on some generalized belief that NO shooting of a cop executing a warrant can be considered murder.

    And I was giving them a benefit of the doubt you weren’t, so that’s all there is to say on that. It also seemed like you were stepping away from discussing the case on its merits and instead just saying “you’re biased so you’re wrong” without actually responding to their argument which I now conclude for myself that you were not.

    chaos (9c54c6)

  92. And I was giving them a benefit of the doubt you weren’t, so that’s all there is to say on that. It also seemed like you were stepping away from discussing the case on its merits and instead just saying “you’re biased so you’re wrong” without actually responding to their argument which I now conclude for myself that you were not.

    I don’t know exactly how to interpret your comment and what you’re claiming I wasn’t doing. I wasn’t responding to “their” (whose?) argument? I wasn’t discussing the case on its merits? I wasn’t stepping away from discussing the case on its merits? I really can’t tell what you mean.

    In any event, I would love to discuss the case on its merits but I don’t believe that I can base the discussion on anything written by Radley Balko.

    Patterico (64318f)

  93. I was saying that it seemed to me at first that you were trying to discredit what he was saying by trying to establish that he was biased, which while effective isn’t as valid as facing his argument head-on. And I was saying that now I don’t think you were doing that.

    chaos (9c54c6)

  94. chaos, I can’t speak for Patterico, but a non-balko analysis already occurred before a jury that probably took this case very seriously. It’s so, so far away from Balko’s analysis that it’s hard to understand how they were both operating on the same facts.

    Balko is the main reason people are concerned about this case, so pointing out that he’s been caught dishonest a few times is crucial to this case.

    In other words, unless someone can explain to me why the jury got this wrong, without citing Balko, it’s normal to accept their view. This might even be an injustice, which is why Balko shouldn’t have ruined his good name in other cases. Why was the best appeal Maye had this garbage about venue?

    Dustin (bb61e3)

  95. I was saying that it seemed to me at first that you were trying to discredit what he was saying by trying to establish that he was biased, which while effective isn’t as valid as facing his argument head-on. And I was saying that now I don’t think you were doing that.

    Fair enough. I really don’t have a position. I am just taking the (BLOGOSPHERICALLY CONTRARIAN!!!!!1!) position that, if the only argument for Maye’s innocence is propounded by a known weasel, I would like to search for other arguments and evidence.

    I actually just got a lead via e-mail, so I may follow that. Kinda busy at work so it may take time. But it’s the best foundation for facts I have seen.

    Patterico (64318f)

  96. We would prefer that you not insult us by including Balko in our group.

    Weasel Anti-Defamation League (d606fc)

  97. Sorry, JD.

    As it happens, I just read Hayne’s testimony. Here. (.pdf) Start at page 30.

    Dang.

    It is pretty damning, and unless Hayne measures 20 degrees upward as 20 degrees downward or something, it really makes Maye look guilty.

    But don’t read it. Simply chant “DRUG WAR!” and applaud the decision. Because this is the blogosphere and that’s what we do.

    Patterico (64318f)

  98. If Maye really wasn’t lying down as his lawyer repeatedly (and improperly) suggested to the jury in the coroner’s testimony — time to come clean now.

    Because Hayne’s testimony seems pretty clear on this point.

    Patterico (64318f)

  99. patterico.
    Ref “Hardly”.
    As you point out, it doesn’t mean “never”.
    And cops get shot in a number of different situations.
    But are the casualties, on both sides, in the SWAT raids the result of the raids themselves or the result of the kind of folks getting raided?
    We have seen examples from here to breakfast of people getting killed as a function of the raid, not the kind of folks getting raided.
    See K. Johnson. The Maye case.
    The property seizure by murder in CA was probably neither, although the dynamics of the raid, (raiding by then being generally accepted) made it easier for the state to get away with it.

    Richard Aubrey (a7332d)

  100. Patterico – can I hypothesize a scenario in which a homeowner is justified in killing an officer acting in the course of his duties? Yes.

    Consider one or more undercover officers entering surreptitiously into what was believed to be an unoccupied residence (perhaps with a wire tap warrant). The sleeping homeowner awakens to find armed unknown subject(s) in his house not wearing uniforms and reacts with violence. Dead officer(s): justified homeowner.

    That is not the Maye case. If Maye did not ‘know’ he was shooting at officers, he damn well should have known. At a minimum this is voluntary manslaughter.

    If the medical examiner himself is competent and credible (a question raised by the dubious Balko and entourage) then his testimony seems definitive as to Maye’s credibility; thus, definitive as to the case as well. My reading of the available arguments, however, suggests there was also physical evidence that should have called the Dr.’s testimony into question – the presence of a bullet hole that supports Maye’s story. Like you, however, I find the absence of reliable information frustrating.

    I agree that we didn’t hear or see the evidence and witnesses and are thus – at best – Monday morning quarterbacking (or for the New Englanders out there – coaching). But what the hell, we’re having fun and it’s not gonna’ make a damn bit of difference to Maye or his prosecution team. In that vein, let’s also look at defense counsel. Reading between the lines, inferring a couple of hints, and consulting my sagacious tea leaves I conclude that she elected a scorched earth ‘all cops are bad and these guys were even worse’ defense. Dumb. If your defendant isn’t O.J. or Angela Davis in front of a California jury this is beating your client’s head against a wall – repeatedly. The likelihood of success in front of a Southern jury is nil. What’s more, my tea leaves tell me she probably PO’d the jury with the argument and bought her client a death penalty. Far better would have been ‘he ran to his baby’s room to protect her from intruders and as soon as he realized they were cops he threw down his gun so they wouldn’t shoot back and possibly hit the child. If he was going to ambush cops he wouldn’t do it from his baby’s room – he’d find somewhere else in the apartment’.

    But what started this whole thing was the venue issue the Court ruled on. The notion that a trial judge who once ruled that ‘yes mister defendant you have convinced me you cannot get a fair trial in this jurisdiction’ is now supposed to say ‘Oh gosh, we were wrong and you can get a fair trial here’ is simply bizarre. There shouldn’t be some sort of ‘more fair’ or ‘less unfair’ balancing act on the venue issue. Once he ruled, the issue as to that jurisdiction should be considered settled. The fact that it was at issue supports my tea leaves. Counsel’s initial declaration to the effect ‘You’re all prejudiced’, followed by, ‘Oops maybe you’re not’ suggests a belief that ‘they’re the ones that know those cops are bad’.

    Robert N. (070cb0)

  101. “IF you cannot imagine any situation where you would find someone guilty for firing on cops serving a search warrant…”

    I’d find someone guilty if they had a long string of priors, if the search warrant had named the person who’s residence was being searched, if the police could produce someone who had sworn that illegal activity was taking place in the residence that was being searched as a basis for their probable cause, and if they had actually found what they were looking for…but, that doesn’t seem to apply here.

    Maybe what I’m reading about this case is wrong, but based on what I’ve heard, I wouldn’t have convicted Maye of anything, much less lst degree murder.

    If the police are going to go around crashing through people’s doors down in the middle of the night, they better have a damned good reason for doing so…and, it doesn’t sound to me like they did.

    Sounds to me like they were on a fishing expedition and they kicked down the door of someone who wasn’t doing anything that merited having their door kicked down. Well, guess what? People get shot doing that, especially if it’s a bad neighborhood and the door gets kicked down in the middle of the night.

    I’m no expert on this particular case, but based on what I do know, there’s a reasonable doubt in my mind that this is 1st degree murder.

    As for the change of venue stuff….defense attorneys are supposed to do everything in their power to defend their clients, and as long as what they’re doing is legal, I don’t have a big problem with it.

    Anyway, that’s my two cents worth.

    Dave Surls (ac98c1)

  102. The only problem with defense counsel making the effort is the issue of competency not acceptability. Defense counsel can argue as he/she deems in the best interests of the client – that does not mean they should get an automatic pass for doing so. The issue I raised in Maye was her competency.

    She first had to prove to the Judge’s satisfaction that venue A was compromised. Having done so, to now claim A was ok after all is saying to her trial judge “You were wrong to believe all that evidence I presented before and I expect you to acknowledge it.” Un-huh, and just how well do you think that’s going to work out for your client? On the other hand she could also be saying “Hey Judge, you remember all that evidence I presented earlier – well, ahhh, guess what, it was all wrong – but this new stuff is ok.” Yep, that’s sure to warm the cockles of the court’s heart also.

    The problem with the Appellate Court ruling is that they are now telling trial judges that they must revisit rulings they made based on factual presentations – even if the first ruling was one requested by the defense (remember, counsel had to first prove that venue A was compromised before she could get an order to change it). The Appellate Court has set up a damned if you do/damned if you don’t dilemma for the court. If he grants the new motion returning the trial to jurisdiction A and defendant is convicted then the defendant wins the appeal because the trial court had already acknowledged that he could not get a fair trial there. If he denies the motion he gets to retry the case anyway. Bizarre.

    BTW – recognize I’m reading the same things you are – I just don’t trust the sources and am frustrated by my inability to locate ones I can trust. Patterico has expressed a similar difficulty in his positions.

    Robert N. (070cb0)

  103. Patterico – there is one other point where the appellate court says the trial court erred – they indicate a “defense of others” jury instruction should have been given.

    The Stephen Hayne testimony is damning – if you don’t believe that Stephen Hayne is willing to falsify forensic evidence or commit perjury. His “bite mark” work alone leads me to the contrary opinion.

    NickM (9d1bb3)

  104. I’m one of Cory Maye’s defense lawyers, and I argued the venue issue on appeal.

    There’s a lot of misstatements in the original post here, and even more in Patterico’s comments. I don’t have the time or inclination to rebut them all, but I’ll address some of the more egregious.

    The first is implied in the very first sentence: “Defendant kills cop.” Cory Maye believed that he was defending his home against an unlawful intruder. He stated this immediately after the shooting, reiterated it again in a statement he gave to the state police who investigated the case, and restated it on the stand. His statements and testimony are 100% consistent with what every other person inside the homes that night(there were two side-by-side duplexes entered simultaneously by two teams of police) says: that inside the homes, no one heard exterior announcements. So, in saying “Defendant kills cop,” the implication is false that Cory knew Officer Jones was a policeman at the time of the shooting.

    On the venue issue, Patterico ignores the essence of the Court’s reasoning: that a defendant who has waived a fundamental constitutional right has the right to reinvoke it in a timely manner. This may be news to Patterico, but it’s been the law of the land since the 1966 Supreme Court decision in Steven v. Marks. Patterico ignores the possibility that the attorney who called Mr. Maye’s trial counsel and told her that he could not get a fair trial in “County B” might have been 100% right; he likewise ignores that the trial court demonstrated that it was perfectly feasible to move the trial again by doing so (to “County C”, a place which no party had requested).

    As Patterico probably understands, but fails to acknowledge, trial courts must meet certain standards for their decisions, depending on the kind of ruling they are making. In Mississippi, as the Court of Appeals restated, a venue decision is one within the “sound discretion” of a trial judge. At the least, that means the trial court must carefully consider the actual facts in the situation before it. In the case of Mr. Maye’s venue motion, the trial court did not take a fresh look at the circumstances in “County A”– which, at that time, were several months after the original motion to change venue. The judge apparently believed, erroneously, that he lacked the authority to move the case back under any circumstances.

    Patterico complains that Mr. Maye didn’t complain about the move (to “County C”) until after his conviction. Surely he’s aware that making a clear motion based on a constitutional right and having that motion denied is sufficient to preserve the issue for appeal. So, I’m not sure what his point is.

    Next, Patterico erroneously writes that “all of” Mr. Maye’s issues were rejected on appeal. The Court of Appeals, however, wrote that in light of its decision on the venue issue, “the Court will not address all of the issues raised, but we will address those which may be relevant upon a new trial.” Suffice it to say that there are numerous questions on which the Court has simply not ruled.

    In one of his innumerable comments, Patterico describes as “pretty damning” Dr. Steven Hayne’s testimony regarding the angle of the wound track through Officer Ron Jones’ body. Patterico ignores both the fact that Dr. Hayne himself testified that he had no scientific basis for extrapolating the wound track data into an opinion on Mr. Maye’s position vis-a-vis Officer Jones, and the Court of Appeals’ own description of the testimony as “not germane to the question that was before the jury and is before this Court” – i.e., whether Cory Maye knew that police officers were attempting to enter his home.

    Finally, in his original post, Patterico descibes Monticello, MS, attorney Bob Evans as a “de facto” member of the defense team. I guess that’s technically true, in the sense that “in fact,” Bob Evans is a member of the team. But if Patterico is trying to imply that Bob is something less than a “full” member of the team, I disagree.

    As a former prosecutor, I find that there is a lot to be disturbed about in the police and prosecution’s handling of Cory Maye’s case; there are a lot of lessons to be learned from it. It’s unfortunate that Patterico has chosen instead to turn the case into a caricature of itself.

    Cory Maye now has a chance to the trial guaranteed to him by the Mississippi and US Constitutions. He has been, is now, and will be found to be an innocent man who was simply trying to protect his daughter under chaotic and terrifying circumstances.

    Ben Vernia (276fe0)

  105. […] Patterico’s Pontifications » A Mississippi Court of Appeals Case […]

    virginia court reporters – Are courts closed on monday? (354bcf)


Powered by WordPress.

Page loaded in: 0.4285 secs.