This woman was 6 and a half months pregnant when she was pulled over by New York State troopers on March 20. She alleged that she was forced off the road, pulled out of her vehicle, and then treated roughly by the troopers, resulting in her having an emergency C section on the same day, ending in the death of the unborn child. She hired an attorney who called for an investigation in an interview with the media, claiming that civil rights were violated and that the child’s death was homicide, caused by the troopers, claiming she was yanked out of her car like a “rag doll” and slammed on the hood of a vehicle.
In response, the New York State Police released the body cam footage, along with a statement announcing that a “quantity of fentanyl and methamphetamine was located secreted” in the woman’s body. Does the footage corroborate the claims, or exonerate the troopers?
Do you have to be a journalist to have First Amendment protections to film in public? Is there a right to record police or other government officials in public? Let me tell you what the federal courts have said…..
To record what there is for the eye to see, or the ear to hear, corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public. See PG Publ’g. Co. v. Aichele, 705 F.3d 91, 99 (3d Cir. 2013); Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (quoting Fields v. City of Phila., 862 F.3d 353, 359 (3rd Cir. 2017)).
Under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas. Fields v. City of Phila., 862 F.3d 353, 360 (3rd Cir. 2017) (“The First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material.” (citation omitted)); See also ACLU v. Alvarez, 679 F.3d 583, 599–600 (7th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 651, 184 L.Ed.2d 459 (2012) (holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cell phone); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“[T]he First Amendment protects the act of making film, as there is no fixed First Amendment line between the act of creating speech and the speech itself.” (quotation omitted); W. Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017) (agreeing with several sister circuits that recording the conduct of officials in general is protected First Amendment speech); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir.2011) (holding there is an “unambiguous[ ]” constitutionally protected right to videotape police carrying out their duties in public); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (finding plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest”).
Furthermore, there can be no doubt that the public has the right to record police officers and government officials from the vantage point of standing on their own private property – and indeed, standing in their own front yard, or within their home.
Can the recordings then be seized by police?
Recently, the Fourth Circuit observed in the context of a claim of seizure of cell phone video footage by law enforcement, that we live “[i]n an era in which cell phones are increasingly used to capture much of what happens in daily life” and that such recordings are protected from seizure by law enforcement under the Fourth Amendment. Hupp v. State Trooper Seth Cook, 931 F.3d 307, 329 (4th Cir. 2019).
But, keep in mind, they could still be subject to seizure without a warrant under the exigent circumstances doctrine…..
I’ll be in federal court tomorrow, Monday, February 3, for a pretrial hearing in the other Putnam County case with a video, and will potentially be meeting with additional witnesses afterwards, if there’s time. If you have information, please let me know.
A few days back I had to trim the video in order to take out the local TV coverage of the task force guys, where they’re walking around the trailer park, banging on doors, etc. They claimed copyright on the footage and threatened to sick their lawyers on me. So I just took that part down. But I assume that you can find it on their site if you look for it. At some point, I’m sure it will be evidence of record anyways.
Since the original video was uploaded, the Putnam County Sheriff has ordered an internal investigation. Right now we’re awaiting the results of that investigation, and also proceeding with our own.
I have personally met with investigators, and have provided them whatever they wanted out of my file. I also made my client and an eyewitness available to them for questioning. I also have received yet another video showing them inside an individual’s home, and I have also provided that to the investigators – with the individual’s consent, of course. Numerous other people have contacted us in regards to other situations involving this same group of guys, and I’m still in the process of speaking to them all.
Here are a few more photos which address important aspects of the situation. Here’s where the Putnam County Special Enforcement Unit cut the lock on my client’s gate at the end of driveway, before driving towards the house in a white truck, and what appears to be two black Ford Explorer unmarked police cruisers.
Here’s where the police officers climbed through the window to get inside the house. They pushed in a window unit air condition. It was actually one of those indoor ACs, but it still requires a window unit for exhaust and drainage. This photos were taken immediately following the search.
Here’s where they yanked the surveillance camera cord. It’s of the type that has two plugs. One of the plugs was pulled out, and the other was ripped in half, leaving the connector still in place.
How do we know it wasn’t already like that? Remember the part of the video where the guy in the SWAT outfit was walking across the bridge? (5:41 in the video) When he gets to the end of the bridge, it freezes. That’s this actual camera. And the point at which it freezes is when the damage occurs to the camera. I originally thought that camera had survived. But no, that one was actually severed, and you see the moment it was severed.
Here’s the guy walking across the bridge:
And here’s the exact moment that camera was disabled:
As for what their defense is at this point, I don’t know. But self-proclaimed “Bailiff” of the Putnam Sheriff’s Department did confront me on social media and try to set me straight on the facts, and the law. He implied that the officers entered with the landlord’s consent. The only problem with that is, a landlord cannot authorize law enforcement to search their tenant’s residence. That’s Fourth Amendment 101, which is why a search warrant is still required even to search the hotel room of an overnight guest (minus a ticking time bomb or something) They can’t just ask the hotel manager for permission to search. A warrant is still required. Secondly, the landlord was questioned very early on, and denied knowing anything about it. That may have been a lie. But if it was, then they can point fingers at each other when it comes time to be placed under oath. But it still won’t be a defense to an illegal search by law enforcement.
As for a criminal investigation, I have no knowledge of any agency investigating them criminally. That doesn’t mean it’s not happening. But nobody has notified myself, nor my client, of there being one. That’s why I believe it’s important to share this information with the public. In the end, the citizens should be informed of what their government is doing. Or not doing.
People assume that people convicted of murder get a large amount of appeals, and have judges looking over their case to make sure everything was constitutional and fair . . . . Nope. This folder contains no actual direct appeal of James McClurkin’s murder conviction.
His lawyer who represented him during the 1977 trial which convicted him dropped the ball completely. He filed the notice of intent to appeal, but never actually followed through. Apparently he was waiting on payment from Mr. McClurkin’s family prior to filing the appeal. However, James’ father, who had hired him initially, passed away two weeks prior to the trial, and had spent all he had on James’ trial. The result was that Mr. McClurkin did not receive a direct appeal for his murder conviction. The State of South Carolina filed a motion to dismiss the notice of intent to appeal based on the failure to take any action beyond filing the notice. So the “appeal” was dismissed forever. What followed is paperwork which mostly discusses legal technicalities such as failure to comply with deadlines, and the discussion of rules which forbid inmates from bringing up old issues. It doesn’t appear that Mr. McClurkin ever had the assistance of a lawyer at all up until 1992, when the real murderer confessed. Every document James filed throughout his incarceration always mentioned first that James had exhausted his appeals. Well, he never got an appeal, and it is a fiction – a lie – that he exhausted his appeals.
The notoriously racist trial judge, Judge Moss, who in 1985 created “controversy” by using the “N word” from the bench (in response to black protestors following the conviction of a black man accused of shooting a white man – ironically similar to James’ conviction). Here is an article I tracked down from January 28, 1985, as it appeared in the South Carolina Herald-Journal.
This file contains almost no discussion of the evidence upon which James’ murder conviction stands. At one point, a lawyer for the South Carolina Appellate Public Defender’s Office filed a motion to withdraw from representing James due to the case being “without merit.” He didn’t bother to mention the evidence from the 1970’s, or the lack thereof. He didn’t even look into the 1992 confession and testimony of the real murderer. This was 2004. James would spend another 12 years in prison.
About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding. Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition. I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.
Additionally, this is an extremely odd case (factually). And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him. It illustrates the danger of jury trials, and the power of the prosecutor. If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender. And then they can charge you with multiple counts, basically restricted only by their whim. The only way to stop them is to appeal.
Also, a H/T to Tom Rist for assisting with the case.
In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.
A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children. She apparently shot her husband with a shotgun while he was sleeping on the couch.
This was basically a “battered woman syndrome” self-defense case.
The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.
Syllabus Point 3 of the Opinion held that:
Where a defendant has asserted a plea of self-defense, evidence showing
that the decedent had previously abused or threatened the life of the defendant is relevant
evidence of the defendant’s state of mind at the time deadly force was used. In determining
whether the circumstances formed a reasonable basis for the defendant to believe that he or
she was at imminent risk of serious bodily injury or death at the hands of the decedent, the
inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is
to say that the defendant actually believed, based upon all the circumstances perceived by
him or her at the time deadly force was used, that such force was necessary to prevent death
or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the defendant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732
(1927), is expressly overruled.
In Syllabus Point 4 of the Opinion, the Court held that:
Where it is determined that the defendant’s actions were not reasonably
made in self-defense, evidence that the decedent had abused or threatened the life of the
defendant is nonetheless relevant and may negate or tend to negate a necessary element of
the offense(s) charged, such as malice or intent.
In Syllabus Point 5 of the Opinion, the Court held that:
An occupant who is, without provocation, attacked in his or her home,
dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be
upon the premises, may invoke the law of self-defense and in such circumstances use deadly
force, without retreating, where the occupant reasonably believes, and does believe, that he
or she is at imminent risk of death or serious bodily injury. In determining whether the
circumstances formed a reasonable basis for the occupant to believe that he or she was at
imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry
is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that
the occupant actually believed, based upon all the circumstances perceived by him or her at
the time deadly force was used, that such force was necessary to prevent death or serious
bodily injury. Second, the occupant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the occupant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110
(1909), is expressly overruled.
You know, sometimes prosecutors should come to the conclusion that the guy deserved it. They should have given this woman a break. She was protecting her children. The police wouldn’t have stopped him from killing her, or the children. That’s why we have guns for self defense. It’s each of ours individuals responsibility to protect ourselves and our children. The prosecutors were trying to victimize these children by turning them into orphans.
As the Appellant/Defendant’s brief noted (caution: there are some gruesome photographs):
From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died. The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.
This is our job as defense attorneys: to protect those of the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it. And by those, I am talking about prosecutors. And Ms. Harding may have fallen short of perfection, but I can’t say that I wouldn’t have done the same thing given the circumstances.
There was a story that I saw yesterday in the Register-Herald titled “Berkeley delegate wants judges’ donations disclosed in trials.” Apparently, as per a bill introduced by Delegate Jonathan Miller, “[b]efore the first shred of evidence is put before a jury, members would know how much — if anything — opposing attorneys dumped into the presiding judge’s campaign chest.”
What I want to get is disclosing contributions to sitting judges from attorneys, first and foremost,” Miller, R-Berkeley, said Monday. “They are very involved in these lower races, circuit judges and family court. And I want disclosure to be compelled.”
Miller is labeling his proposal the “Jim Kramer Rule,” named after the investment guru, who, under Securities Exchange Commission rules, must disclose his personal holdings before pitching any stock.
The proposed legislation purportedly would not apply to criminal cases – not that it would be constitutional anyways…. This legislation begs the question: what in the heck is the point of doing this? The reason that we have a jury in civil trials in West Virginia, is to decide contested issues of fact. Of course the lawyers always believe that the trial judge favors and/or helps one side or the other somewhat during the trial. But from the point of view of the jury, the judge is supposed to be neutral, and is only assisting them in doing their job. In fact, the judge will instruct them not to try and speculate as to what he thinks about the case. To instruct the jury from the beginning on which lawyer contributed campaign donations would confuse the jury from the start, and would possibly cause prejudice to an innocent party. The lawyer is only representing the client. Now if the client has some sort of improper connection with the judge, that could be different, in which case there already exists a procedure for the recusal of a judge if there exists a conflict.
Regardless, there’s no way this legislation, if passed, would get through the West Virginia Supreme Court of Appeals – all of whom are judges who arrived where they are, in part, through campaign contributions.
“I could get into trouble for telling you this, but…”
“Delete this email immediately.”
“I really shouldn’t put this in writing.”
“Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
“She/He/They will never find out.”
“We’re going to do this differently than normal.”
“I don’t think I am supposed to know this, but…”
“I don’t want to discuss this in e-mail. Please give me a call.”
“Don’t ask. You don’t want to know.”
“Is this actually legal?”
Electronic documents are increasingly becoming an important aspect of all types of litigation, including criminal cases. But illegally accessing that information has also become a crime in and of itself – and a federal one at that. Thus, I’m working on a future post entitled, “101 Ways to Get Into Trouble Using Email.” In summary, it’s not a good idea to put anything in an email that you wouldn’t be comfortable having displayed to a panel of twelve jurors on a huge screen.
Houston Criminal Defense Lawyer, Mark Bennett, posted yesterday regarding this story from Johnson County Tennessee, where Sheriff’s Deputies have been arresting people and confiscating iphones after pictures are taken of the cops in public.
This reminds me of a West Virginia case I am dealing with right now where a man videotaped the police shooting tear-gas grenades into his home. The police then broke down the door, shot the man with a taser, and attacked the man with their k-9. Then the guy was dragged off and thrown in jail. Guess what the charge was? Murder? Kidnapping? No, he was alleged to have made a harassing phone call. Guess what happened to the video and the video camera? The cops seized it with the consent of the prosecuting attorney – and it has yet to appear or to be provided to the defense. The problem is, that the 911 logs prove that the officers found it, and called the prosecutor requesting permission to seize it. Do you think they could be holding out until after the statute of limitations runs on a civil lawsuit? Or do you think they “misplaced” it somewhere in the evidence room?
So for those of you who think that law enforcement corruption in West Virginia is a conspiracy theory, please see the above paragraph. It exists. If any State or Federal investigators are at all interested in this case, please feel free to contact me and I will provide you with all of the particulars. But I won’t hold my breath with respect to the State, since they would be the ones getting sued. And I suspect the feds are too busy to worry about West Virginia. Like they say, “if you investigate one case, everyone else will want their case investigated as well…,” and that could take a while.
If you have a case in which you will need to subpoena cell phone records, no need to reinvent the wheel…
I came across this posting of Mark Bennett’s regarding addresses of the major cell phone companies to which to serve subpoenas, which can be used in either civil or criminal cases.
