Can the cop who fatally shot a man at Oakland station be tried again by DoJ?

[Office_Shredder]

I'm sure some of you remember the cop who says he intended to taser someone at a subway station in Oakland, only to pull out his gun and kill the guy

http://www.cbsnews.com/stories/2010/07/09/national/main6661809.shtml?tag=stack

He was convicted for involuntary manslaughter, and now apparently the DoJ is investigating the case. Isn't there some sort of double jeopardy thing here that would prevent him from being prosecuted?

 

[leroyjenkens]

It looks like involuntary manslaughter. What else could it be? I doubt he meant to shoot him in the back with a real gun, even though it's hard to believe he thought he was holding a taser.

 

[russ_watters]

Yes, double jeopardy would apply - as would jurisdiction (the feds have none).

And I agree with leroy - I don't see that there is any reason to believe this was an intentional act. Being hard to believe that it was unintentional is not evidence that it was intentional and thus it is impossible to convict him of intentional killing.

 

[KalamMekhar]

BLACKHAWK! makes Taser holsters that are meant to be pulled down and out, unlike a pistol where it is straight out. I am not sure if he was using a proper Taser holster or not, but it seems as though he should have had much more awareness of what his current weapon was (the grips are much different). Easy for me to say in hindsight though.

 

[chemisttree]

I think it's second degree murder. Tasers don't feel like 9mm handguns. The perp was lying on the ground, face down so the "rush to judgement" was entirely unnecessary and cavalier IMO.

Definition of 2nd degree murder from FindLaw... "a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."

Shooting a prone suspect in the back with a 9mm qualifies. The "I didn't know it was a gun, thought it was my Taser," defense is just sickening.

What a weird place LA is. Boycott AZ for 1070 but let this guy off with manslaughter.

Its a mad world.

 

[russ_watters]

The "I didn't know it was a gun, thought it was my Taser," defense is just sickening.

Your belief that he knew it was a gun cannot possibly be strong enough - based on evidence - to be "beyond a reasonable doubt".

 

[chemisttree]

Your belief that he knew it was a gun cannot possibly be strong enough - based on evidence - to be "beyond a reasonable doubt".

That is part of the sickening aspect of the defense. Anyone can use that defense and get away with it -based on evidence- of course. Too bad that the words 'reasonable doubt' are used in that definition. I think the officer is guilty beyond a reasonable doubt. Is it reasonable for me to doubt that he doesn't knows the difference between his lethal and non-lethal weapons? Is it reasonable to expect that this officer should know the difference between a Taser and a 9mm by feel? By sight? By the side he holsters his two weapons? Did he have any training at all? It is reasonable that he should know these things and that he was trained to kill or to incapacitate. Therefore it is not reasonable that he should use that asinine defense and expect it to produce a "reasonable doubt" in the jurors.

Guilty of murder in the second degree IMO.

 

[brushman]

Looks like manslaughter to me.

 

[leroyjenkens]

That is part of the sickening aspect of the defense. Anyone can use that defense and get away with it -based on evidence- of course. Too bad that the words 'reasonable doubt' are used in that definition. I think the officer is guilty beyond a reasonable doubt. Is it reasonable for me to doubt that he doesn't knows the difference between his lethal and non-lethal weapons? Is it reasonable to expect that this officer should know the difference between a Taser and a 9mm by feel? By sight? By the side he holsters his two weapons? Did he have any training at all? It is reasonable that he should know these things and that he was trained to kill or to incapacitate. Therefore it is not reasonable that he should use that asinine defense and expect it to produce a "reasonable doubt" in the jurors.

Guilty of murder in the second degree IMO.

I agree with you, but I can't convince myself to believe that the cop thought to himself "What the hell, I'll just execute this guy right here."

 

[russ_watters]

That is part of the sickening aspect of the defense. Anyone can use that defense and get away with it -based on evidence- of course. Too bad that the words 'reasonable doubt' are used in that definition.

The "reasonable doubt" standard is used to ensure that innocent people don't go to jail. It may turn out that it allows the guilty to go free (which by the way, it didn't in this case), but that's the penalty you pay for needing to be sure.

I think the officer is guilty beyond a reasonable doubt. Is it reasonable for me to doubt that he doesn't knows the difference between his lethal and non-lethal weapons? Is it reasonable to expect that this officer should know the difference between a Taser and a 9mm by feel? By sight? By the side he holsters his two weapons? Did he have any training at all? It is reasonable that he should know these things and that he was trained to kill or to incapacitate. Therefore it is not reasonable that he should use that asinine defense and expect it to produce a "reasonable doubt" in the jurors.

You're not following the standard properly because you are not considering all of the issues you are required to consider. You forgot several issues:

1. Adrenaline: is it reasonable to think that in a high stress situation, he forgot his training and lost awareness? It happens all the time. I think it is quite possible.
2. Motive: In order for this to have been 2nd degree murder - for him to have done it on purpose - there had to be a motive. Do you know of a beyond-a-reasonable-doubt reason why he did it on purpose?
3. His statement in the heat of the moment that he said he was going to use his taser: Do you have a beyond-a-reasonable-doubt reason to believe he was thinking that he wanted to kill the person and had the clarity of forethought to throw in a little misdirection?
4. His record: He has a spotless record. This goes to credibility regarding all 3 of the above: is it reasonable to believe someone with some unstated desire to murder would not have revealed associated character flaws during his career? And is there a beyond-a-reasonable-doubt reason why you would throw out his record and credibility to believe he was lying?

The bottom line is that there is no direct evidence at all that points to to a purposeful killing. All you have is a doubt that it could be accidental. A doubt that it could be accidental is not a reasonable certainty that it could have been on purpose. Your incredulity of how big of a mistake it would have to be does not equate to beyond a reasonable doubt that he did it on purpose.

Heck, I can provide a simple analagous error that happens relatively frequently: unintentionally hitting the accelerator of a car instead of the brake. The pedals feel completely different from each other, so how could it be possible to mistake them for each other? Yet people do - and occasionally people die. No one would ever get convicted of 2nd degree murder for that without some evidence that they drove through a crowd on purpose.

 

[TheStatutoryApe]

Yes, double jeopardy would apply - as would jurisdiction (the feds have none).

And I agree with leroy - I don't see that there is any reason to believe this was an intentional act. Being hard to believe that it was unintentional is not evidence that it was intentional and thus it is impossible to convict him of intentional killing.

Double jeopardy only applies if the separate charges are the same or substantially similar (i.e. murder and murder or murder and manslaughter). If they prosecute for a crime that is wholly separate from manslaughter then it is not double jeopardy. Since it is apparently the civil rights division that is investigating I assume that they will be looking into the possibility of prosecuting on the basis of an alleged infringement of the victim's civil rights which would not qualify as double jeopardy.

As far as jurisdiction goes the particular department is responsible for prosecuting violations of the Civil Rights Acts. Also the DoJ runs a program called C.O.P.S. which contributes funds to most of the law enforcement agencies in the country (local police included). Depending on the contract this may require local law enforcement (at least those that accept the funds) to submit to investigation and prosecution from the DoJ.

All that aside, I agree that manslaughter seems most appropriate. I do not believe that the officer intended to shoot the man. I am not sure I could find any source on it but I remember reading that witnesses said he seemed rather shocked by what had happened.

 

[chemisttree]

I agree with you, but I can't convince myself to believe that the cop thought to himself "What the hell, I'll just execute this guy right here."

Thats why it should be second degree rather than first degree IMO.

 

[russ_watters]

Thats why it should be second degree rather than first degree IMO.

No, what separates second and first is premeditation. Unless the cop knew he was going to be in that situation that day, he couldn't have possibly planned it. So first degree murder was never really on the table here.

Second degree murder is still on purpose, so if you don't believe (beyond a reasonable doubt) the cop decided he wanted to execute the guy, then you don't actually believe it is second degree murder - you're just misusing the term. http://legal-dictionary.thefreedictionary.com/second+degree+murder

 

[chemisttree]

The "reasonable doubt" standard is used to ensure that innocent people don't go to jail. It may turn out that it allows the guilty to go free (which by the way, it didn't in this case), but that's the penalty you pay for needing to be sure. You're not following the standard properly because you are not considering all of the issues you are required to consider. You forgot several issues:

1. Adrenaline: is it reasonable to think that in a high stress situation, he forgot his training and lost awareness? It happens all the time. I think it is quite possible.

You are invoking an "adrenaline" defense? Should it be that easy to get away with second degree murder. "I was excited and therefore not guilty!"

2. Motive: In order for this to have been 2nd degree murder - for him to have done it on purpose - there had to be a motive.

Nope. Just dangerous conduct and being careless about human life is all that is required. Motive is not even in the discussion. Where is motive in this definition?

"a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."

3. His statement in the heat of the moment that he said he was going to use his taser: Do you have a beyond-a-reasonable-doubt reason to believe he was thinking that he wanted to kill the person and had the clarity of forethought to throw in a little misdirection?

Thinking that he wanted to kill the person is premeditation which is not part of the discussion in second degree murder. What the officer was thinking is unimportant. No one can know that but the officer anyway. That's just not a defense. It is a poor excuse.

4. His record: He has a spotless record. This goes to credibility regarding all 3 of the above: is it reasonable to believe someone with some unstated desire to murder would not have revealed associated character flaws during his career? And is there a beyond-a-reasonable-doubt reason why you would throw out his record and credibility to believe he was lying?

His record? He is on record shooting a suspect in the back. Would you trust someone that would either tase you shoot you while you were lying face down on the floor? People lie all the time but it isn't important anyway. He caused a death due to his lack of concern for human life. Second degree murder.


http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/30/BABI15KCD5.DTL&type=adfree"

...The assertion that Mehserle meant to fire his Taser "appears to me to be a change in his story," Jacobson said. "He has a willingness to add to the story, to change the story, to make up something that's not true to avoid consequences."

Judge Jacobson thought he was lying since his story appeared to change with time.
What's worse than a cop that lies about his actions (thus maintaining a spotless record)? A cop that would shoot you in the back and lie about his actions is much worse.

 

[Ivan Seeking]

By Russ's argument, any cop could get excited and then shoot someone, and use the same defense. If the police are so poorly trained and excitable that they can't tell a taser from a 38, then they are too dangerous to be carrying lethal weapons.

More likely he was consumed with personal hatred, and reacted accordingly. I can't watch the video without deeming it an execution.

 

[chemisttree]

I think it is more likely that he thought the guy was going for a gun. That's what he told one of his officer buddies after the incident. If I thought he was going for a gun I wouldn't choose my taser. Do you even have to stand and draw to use the taser? Isn't it better deployed by pressing the prongs against the target?

He is on record saying that, "I'm going to tase him", he stands but then chooses his 9mm and fires. Afterward he explains to his officer buddy that he thought the suspect was reaching for a gun.

 

[Ivan Seeking]

I think it is more likely that he thought the guy was going for a gun. That's what he told one of his officer buddies after the incident.

If he thought the guy was pulling a gun, he wouldn't be going for his taser.

 

[Chi Meson]

I'm sure some of you remember the cop who says he intended to taser someone at a subway station in Oakland, only to pull out his gun and kill the guy

http://www.cbsnews.com/stories/2010/07/09/national/main6661809.shtml?tag=stack

He was convicted for involuntary manslaughter, and now apparently the DoJ is investigating the case. Isn't there some sort of double jeopardy thing here that would prevent him from being prosecuted?

As was the case with OJ, you can be prosecuted a second time for the same act as long as you are being prosecuted for a different crime. The feds are investigating the case, and so far that is it. If they find a reason to pursue prosecution on "civil rights" grounds, then it would be a "different crime."

In order to quell some of the unrest in LA, the feds have to at least investigate. If they find no shred of evidence that the cop has a history of hatred of blacks, then it probably won't go further. At the very least, it would put some time into the picture and let tempers drop a little.

I can simultaneously understand that a person could grab the wrong device while rushing on adrenaline , AND be totally dumbfounded that he didn't notice the weight difference and grip difference between the two.

I also think that even the worst racist cop is not ever looking forward to executing anyone. With my limited knowledge of the case, it seems as if he got the right conviction.

 

[chemisttree]

If he thought the guy was pulling a gun, he wouldn't be going for his taser.

Beat me to it.

 

[j93]

By Russ's argument, any cop could get excited and then shoot someone, and use the same defense. If the police are so poorly trained and excitable that they can't tell a taser from a 38, then they are too dangerous to be carrying lethal weapons.

More likely he was consumed with personal hatred, and reacted accordingly. I can't watch the video without deeming it an execution.

The truth is you are right any officer can kill any person randomly for any reason and at most get involuntary manslaughter unless he leaves some type of premeditation paper trail. This is the truth is period unless maybe they could prove a history of being dirty in some way. So if your interested in what it feels like to kill someone join the force and just do it once randomly and at worst you would get involuntary manslaughter ,and if you are lucky there might not be a camera around and it might be your word against someone else and you would likely not be prosecuted.

There is no way the jury would of convicted him of second degree murder without the officer loudly and clearly screaming something along the lines "another dead (insert racial epithet)".

In summary the conviction is as good as it gets for the situation, like it or not.

 

[Vanadium 50]

More likely he was consumed with personal hatred

Do you think he should be charged with a hate crime as well?

 

[Office_Shredder]

As was the case with OJ, you can be prosecuted a second time for the same act as long as you are being prosecuted for a different crime.

OJ was only prosecuted once for murder. He was also hit with a civil lawsuit, which is not a criminal prosecution

 

[leroyjenkens]

If he thought the guy was pulling a gun, he wouldn't be going for his taser.

If the guy was laying on the ground right below him and he thought the guy was reaching for a gun, he wouldn't draw anything. He would reach down and stop him from doing it.

 

[madness]

Definition of 2nd degree murder from FindLaw... "a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."
.

If it was unintentional, then the above sounds about right - he clearly had a lack of concern for human life if he allowed himself to make such a mistake. If it was intentional, then it would be full on murder.

 

[leroyjenkens]

If it was unintentional, then the above sounds about right - he clearly had a lack of concern for human life if he allowed himself to make such a mistake. If it was intentional, then it would be full on murder.

How does that differ from any case of manslaughter?

 

[Office_Shredder]

Definition of 2nd degree murder from FindLaw... "a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."

Ok, let's look again

http://criminal.findlaw.com/crimes/a-z/murder_second_degree.html

Second-degree murder is ordinarily defined as 1) an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion" or 2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life. Second-degree murder may best be viewed as the middle ground between first-degree murder and voluntary manslaughter.

Rather than cherry picking parts of definitions to re-define second degree murder as manslaughter, let's have an informed discussion here. The primary definition of second degree killing requires an intent to kill somebody. The second definition is not supposed to allow second degree murder to usurp manslaughter, it's supposed to be when someone does an act knowing someone will die and somebody dies. For example, if you shoot a gun into a crowd, and hit someone, you weren't planning on killing them but it's still murder

 

[KalamMekhar]

By Russ's argument, any cop could get excited and then shoot someone, and use the same defense. If the police are so poorly trained and excitable that they can't tell a taser from a 38, then they are too dangerous to be carrying lethal weapons.

More likely he was consumed with personal hatred, and reacted accordingly. I can't watch the video without deeming it an execution.

Obviously this honkie hates the black man, and only wants to see them suffer under the weight of the world.

Would you be saying the same thing if a black man shot a white man? Most likely not.

 

[chemisttree]

Ok, let's look again

http://criminal.findlaw.com/crimes/a-z/murder_second_degree.html



Rather than cherry picking parts of definitions to re-define second degree murder as manslaughter, let's have an informed discussion here. The primary definition of second degree killing requires an intent to kill somebody. The second definition is not supposed to allow second degree murder to usurp manslaughter, it's supposed to be when someone does an act knowing someone will die and somebody dies. For example, if you shoot a gun into a crowd, and hit someone, you weren't planning on killing them but it's still murder

Do you know what the word "or" means? You claim that there is a primary and secondary definition. There isn't. There are two requirements in that definition and either (see definition of "or") is valid.

Here is the Californian definition of 2nd Degree Murder (http://legal-dictionary.thefreedictionary.com/Second-degree+murder) and especially (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199 )

...Many states use the California definition of implied malice to describe an unintentional killing that is charged as murder because the defendant intended to do serious bodily injury, or acted with extreme recklessness. For example, if an aggressor punches a victim in the nose, intending only to injure the victim's face, the aggressor may be charged with murder if the victim dies from the blow. The infliction of serious bodily injury becomes the equivalent of an intent to kill when the victim dies. Although the aggressor in such a case did not have the express desire to kill the victim, he or she would not be charged with assault, but with murder. To understand why, it is helpful to consider the alternative: When a person dies at the hands of an aggressor, it does not sit well with the public conscience to preclude a murder charge simply because the aggressor intended only to do serious bodily injury.

Who's picking now?

 

[chemisttree]

If it was unintentional, then the above sounds about right - he clearly had a lack of concern for human life if he allowed himself to make such a mistake. If it was intentional, then it would be full on murder.

Read up on the requirements for 2nd degree murder and get back to us...

 

[Office_Shredder]

Do you know what the word "or" means? You claim that there is a primary and secondary definition. There isn't. There are two requirements in that definition and either (see definition of "or") is valid.

Here is the Californian definition of 2nd Degree Murder (http://legal-dictionary.thefreedictionary.com/Second-degree+murder)



Who's picking now?

If you intend to commit an action that has a serious chance of killing someone, that's second degree murder. Tasering someone is not such an action, so pulling out a gun instead of a taser by accident would not be second degree murder.

 

[russ_watters]

Chemisttree, you're still misunderstanding the differences between the degrees. Read the link I provided! (and others describing the other degrees)

You are invoking an "adrenaline" defense? Should it be that easy to get away with second degree murder. "I was excited and therefore not guilty!"

Huh? No. That's not even close to what I said, much less logical! Try it again with a little more thought and we'll see if there is anything for me to respond to!

Nope. Just dangerous conduct and being careless about human life is all that is required.

No, that's 3rd degree murder - and that's what he was convicted of. http://en.wikipedia.org/wiki/Manslaughter

2nd degree murder must be an intentional assault with a deadly weapon.

Motive is not even in the discussion. Where is motive in this definition?

Motive - or more generally, what was going on in his head - is everything here:

The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind.

http://en.wikipedia.org/wiki/Manslaughter

The difference between second and third degree murder is simply intent. 3rd degree murder is recklessness that results in death. 2nd degree murder requires the intent to injure:

[from the same wiki, the next sentence]This is particularly true within the law of homicide, where murder requires either the intent to kill - a state of mind called malice, or malice aforethought - or the knowledge that one's actions are likely to result in death; manslaughter, on the other hand, requires a lack of any prior intention to kill or create a deadly situation.

"a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."

Yes. Perhaps the real problem here is that you are ignoring the definition and just inserting your judgement? You believe he intended to shoot the guy [with a gun], so you're applying that definition. And if he did intend to shoot the guy, then that definition would fit. But it couldn't be proved to beyond a reasonable doubt that he did, so it doesn't. That's not what he was convicted of because the prosecution could not prove beyond a reasonable doubt that he intended to shoot the guy [with a gun].

Thinking that he wanted to kill the person is premeditation which is not part of the discussion in second degree murder.

No, premeditation is what happens in the hours, days or months before the crime. It is a conscious decision, with planning, to commit murder. What happens during the cime is not premeditation. Here's the definition of that word!:

Premeditated murder is the crime of wrongfully causing the death of another human being (also known as murder) after rationally considering the timing or method of doing so, in order to either increase the likelihood of success, or to evade detection or apprehension.[1]

http://en.wikipedia.org/wiki/Premeditated_murder

What the officer was thinking is unimportant. No one can know that but the officer anyway. That's just not a defense. It is a poor excuse.

Poor excuse or not, it is a critical criteria as demonstrated above, and the doubt created by that poor excuse is what requires a ruling of not guilty for 2nd degree murder. This is clear cut and it seems that your argument is based on your personal feeling that the sentence wasn't harsh enough and not a faithful reading of the definitions.

His record? He is on record shooting a suspect in the back.

You know darn well that's not what "his record" is and that his record matters. 20 years of spotless history matters just like 20 years of petty crimes (for example) would matter in determining his credibility.

He caused a death due to his lack of concern for human life. Second degree murder.

No, that's third degree murder.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/30/BABI15KCD5.DTL&type=adfree"

That's nice. Did the judge apply the "reasonable doubt" criteria, did he sit through an entire trial to see all of the evidence and was he on the jury? If not, it's irrelevant.

Several witnessess stated that he acted surprised and said "Oh my God" several times after he fired the shot. Are you 95%+ certain that he had the forethoughth to do that and that he was indeed only acting?

 

[russ_watters]

By Russ's argument, any cop could get excited and then shoot someone, and use the same defense.

Yes, if the same elements that we've been talking about exist, the same defense could be used. That's trivially obvious.

If the police are so poorly trained and excitable that they can't tell a taser from a 38, then they are too dangerous to be carrying lethal weapons.

Yes, clearly this officer is a danger to society and he should go to jail and then never be allowed to be a cop again...


...oh wait, that's what happened!

More likely he was consumed with personal hatred, and reacted accordingly. I can't watch the video without deeming it an execution.

"More likely"? So you're saying you agree that the "beyond a reasonable doubt" criteria for 2nd degree murder was not met and you agree with the verdict, then, right?

While we're at it, no one arguing for 2nd degree murder has yet directly addressed the "reasonable doubt" issue. Could you guys explain how you can be 95% certain that the cop intended to kill even though there is no direct evidence of that intent?

 

[russ_watters]

Do you think he should be charged with a hate crime as well?

Well gee, with all of the clear/direct evidence of hate, I'm surprised he didn't!

 

[russ_watters]

Who's picking now?

Still you. The other side of the "or" is still an intentional assault with a potentially deadly weapon.

 

[NeoDevin]

Still you. The other side of the "or" is still an intentional assault with a potentially deadly weapon.

A taser is a "potentially deadly weapon", just less deadly than a gun. I think chemisttree is suggesting that: while assaulting with the taser, the officer unintentionally caused the death of the victim, thereby satisfying the definition of 2nd degree murder.