Orange County Criminal Attorney Blog

Five former New Orleans police officers received sentences ranging from six to sixty-five years in prison from a federal judge on April 4, 2012. The officers, Kenneth Bowen, Robert Gisevius, Robert Faulcon, Anthony Villavoso, and Arthur Kaufman, were charged with a variety of federal firearms and civil rights offenses related to shootings at a New Orleans bridge during Hurricane Katrina's aftermath in 2005. The case demonstrates two interesting aspects of criminal defense: it shows how federal prosecutors can step in when local law enforcement is compromised or implicated in a matter, and it shows that police misconduct can have a remedy.

Hurricane Katrina was the costliest natural disaster in United States history, and also one of the deadliest with nearly 2,000 victims along the Gulf coast. The hurricane made landfall in southeast Louisiana on August 29, 2005. The worst damage and loss of life occurred in New Orleans, where the failure of the levees flooded most of the city and many surrounding areas. A period of chaos followed, in which people struggled to get out of the city and crime was reportedly rampant.

On September 4, 2005, less than a week after the levees broke, four of the defendants, Bowen, Gisevius, Faulcon, and Villavaso, went to the Danziger Bridge in response to a report of officers taking fire. According to the complaint filed in federal court, the officers encountered six unarmed civilians on the east side of the bridge. The officers allegedly opened fire on the group with assault rifles, pistols, and shotguns, killing one person, James Brissette, and wounding four others. The officers then drove to the west end of the bridge, where they opened fire on two men. One man, Ronald Madison, was shot and killed, and the officers arrested the other for attempted murder of a police officer. A judge ordered his release three weeks later, with no charges ever filed against him.

The fifth defendant, Kaufman, was assigned to investigate the shootings later that same day. He submitted a report, co-authored with another officer, in May 2006 describing the matter as "solved." The Orleans Parish District Attorney investigated the matter between 2006 and 2008, making no findings as to any officer's culpability. They referred the matter to the FBI.

The officers were charged with violations of the victims' civil rights "under color of law," conspiracy to commit an offense, firearms violations, fraudulent statements, witness tampering, and falsification of records. Five other officers, all charged with offenses related to the alleged cover-up of the incident, pleaded guilty before trial. In August 2011, a jury convicted four defendants of civil rights, firearms, and conspiracy offenses, and convicted Kaufman of offenses related to covering up the incident.

Continue reading "Former Police Officers Sentenced in Post-Katrina Shooting Cases" »

A boy accused of accidentally shooting his classmate at a Seattle-area school with a gun he brought to school has received deferred prosecution from the court, along with a reduction of the primary criminal charge from third-degree assault to reckless endangerment. Charges for unlawfully possessing a firearm and bringing a firearm on school grounds still stand. He will also offer testimony against his mother for her alleged role in giving the boy access to the pistol. The shooting victim, eight year-old Amina Bowman, remains in serious condition in the hospital.

The nine year-old boy, who remains unnamed, brought the gun to school, where he is a third-grade student, in his backpack on Wednesday, February 22. At about 1:30 p.m., the gun went off in his backpack, and the bullet struck Bowman in the abdomen. She was airlifted to a nearby hospital, and the boy was taken into custody by police.

Bowman's condition remains listed as "serious," but she is also reported as "recovering." According to Seattle's NWCN News, she has had five surgeries so far and may need more, as the bullet struck several of her vital organs.

Police charged the boy with assault, unlawful possession of a firearm, and bringing a weapon to school. A judge lowered his bond from $250,000 to $50,000 at a preliminary hearing the day after the shooting. The boy's father and uncle, who is reportedly his legal guardian, told the media that they believed he got the gun from his mother's boyfriend during a visit the previous weekend. At the time of the preliminary hearing, law enforcement had not indicated whether they intended to investigate the parents or other adults.

The boy and his attorney quickly reached a plea as to the assault charge. The court approved the deferred prosecution agreement on March 6. He will have to complete a one-year period of community supervision, and he must perform forty-eight hours of community service. He must also reside in a home approved by the court, write a letter of apology to Bowman, stay away from his mother, and assist in the prosecution of his mother and her boyfriend.

The court issued warrants for the arrest of the mother and her boyfriend for their role in allowing the boy access to the gun. They are reportedly attending a NASCAR event in Nevada at present.

Continue reading "Boy Accused of Shooting His Third-Grade Classmate Receives Deferred Prosecution; Arrest Warrant Issued for Boy's Mother" »

In a 1999 decision, a California appellate court ruled that a detainee's refusal to consent to a pat-down search does not constitute the reasonable suspicion needed to justify such a search.

The case involved a juvenile detained by an officer for improper lighting on his bicycle. By all accounts, the juvenile was cooperative until the officer told him he was going to conduct a pat-down search. At this point, the juvenile refused to consent to the search. Nonetheless, the officer proceeded with the pat-down, finding a revolver in the juvenile's jacket pocket.

The court reversed the subsequent conviction indicating the reasonable suspicion required to justify the search could not be created by the detainee's attempt to exercise his 4th Amendment rights. Further, the court found, under a totality of the circumstances standard, no other specific facts existed to lead the officer to believe the juvenile was armed and dangerous.

Once it is okay to violate a person's rights because of the exercise of the right, we are in trouble!

The United States Supreme Court heard arguments in late 2009 concerning the Miranda warning and the nature of one's right to an attorney. The issue centers on a case involving a Florida man convicted of possession of a firearm. At the time of his interrogation, the man signed a written waiver of rights which included the phrase "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview." The man subsequently confessed to buying the gun on the street for protection.

At the heart of the defendant's argument is the assertion he was of the belief he no longer had the right to an attorney and/or to have an attorney in the interrogation room once the questioning began. The lower court ruled in his favor and overturned the conviction, finding the police did not adequately make clear to the defendant he had the right to have an attorney with him during questioning.

By all accounts, it appears Justices Breyer and Sotomayor may be leaning toward upholding the lower court's ruling, questioning the clarity of the advisement given to the defendant. Justice Scalia, however, is not so convinced likening the defendant's argument to "angels dancing on the head of a pin."

This case is but one of three Miranda warning cases currently before the court. It is anticipated rulings in these matters will be handed down this year. Miranda rights resulted from the 1963 case of Ernesto Miranda who was convicted of kidnap and rape after confessing to police. In 1966, the United States Supreme Court ruled the confession could not be used as evidence against him because he had not been advised of his rights.

Many of the Miranda warning cases could be resolved if warnings were not only made clear, but officers would require clear responses from suspects as well.