Oklahoma Criminal Defense Blog

Four years ago, Julio Morales went into a bedroom and had sex with an 18-year-old woman who had been sleeping.  She was the sister of one of his friends.  She thought Morales pretended to be her boyfriend, who had just left without her knowing it.  When she realized it wasn’t her boyfriend, she cried ‘rape.”  Morales was charged and convicted of rape and sentenced to three years in prison.  Now that conviction has been set aside

California’s Second District Court of Appeals reversed the conviction because the facts of the case did not violate the law. A public uproar ensued.  That law, enacted in 1872, is the focus of the uproar, and the California legislature is going to change it.  The law – under which Morales was prosecuted – provides that a person who gets consent for sex by pretending to be someone else is only guilty of rape if the consenting party, the victim, is married and the perpetrator is pretending to be the spouse. In this case, Morales apparently pretended to be the teen’s unmarried boyfriend, and she didn’t recognize otherwise until too late.

The California legislature had a bill in 2011 that would have expanded the rape law to include perpetrators who pose as live-in boyfriends or girlfriends and dupe their victims into sex. The bill was approved by the Assembly but stalled in the Senate Public Safety Committee because of legislators’ concern that more people would be convicted and further overcrowd the state’s prison population.  Since the legislature has now amended California’s three-strikes law, the cause of so much prison overcrowding, that concern should be allayed.

Prosecutors could not prove a felony rape charge in the Morales case because the woman wasn’t married, because she consented to having sex, and he had not pretended to be her husband. A similar law in Idaho prevented an unmarried woman from pressing rape charges three years ago after being tricked into sex with a stranger by her then-boyfriend.  The Idaho law was then amended in 2011 to provide for such facts.

Trayvon Martin was shot to death in Sanford, Florida last April.  Fred Zimmerman shot him.  That much is known, but too little else is known for sure.

The shooting made national headlines because it involves the “Stand Your Ground” law that allows Floridians to use deadly force in self-defense under certain circumstances.  It also made headlines because Trayvon was African American and Zimmerman was not, and Zimmerman was not initially charged with any crime.  The African-American community and its sympathizers cried “foul.”  Eventually, even the President of the United States came down to make a statement.

Now that Zimmerman has been charged with second degree homicide by a second prosecutor appointed by the governor, the jury will have to decide most importantly what was in the mind of Zimmerman just when he pulled the trigger.  Intent and state of mind are always proved or disproved by circumstantial evidence, and ultimately by arguments about the tiniest details.  The problem in this case is that a lot of details were lost due to the haphazard investigation by the small-town police force.

Zimmerman told police he thought Martin, 17 yrs old, was an intruder in his gated community.  Investigation has shown he was not an intruder.  Martin was a guest at the Retreat at Twin Lakes and his girlfriend was exchanging text messages just before he was shot. Most critically, there were no witnesses to the beginning of the fight between the two, the fight ended with Martin’s getting shot to death and Zimmerman receiving a broken nose and lacerations on the back of his head.  Witnesses saw the two fighting and heard one of them crying, “help,” but it’s uncertain which of them cried out.

Police interviewed Zimmerman only 15 minutes before concluding the shooting was justified.  They never looked for his car, the location of which might have given some perspective on how far he walked to Martin.

Also significant, as reported from the first, was the fact that Zimmerman followed Martin and reported his following to the 9-11 call center.  When Zimmerman made this call, the 9-11 operator told Zimmerman to get back in his car, not to confront Martin.  It is this fact, that Zimmerman disregarded the 9-11 dispatcher, that Martin sympathizers claim makes Zimmerman an aggressor and therefore guilty of causing a confrontation and of killing Martin unnecessarily.  Zimmerman sympathizers claim that a 9-11 dispatcher has no authority to give any directions or legal advice, and that Zimmerman simply continued to follow Martin until Martin attacked Zimmerman.

That would be the nub of the case if Zimmerman were facing a jury in Oklahoma.  The jury would be given an instruction of law as follows: “ A person is an aggressor when that person by his/her wrongful acts provokes, brings about, or continues an altercation.” The instruction also provides the following additional language where appropriate: “The use of words alone cannot make a person an aggressor.”  OUJI-CR 8-53:  Defense of Self-defense – Aggressor Defined.
The jury in Oklahoma would also be given an instruction of law that provides:
“A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger of death or great bodily harm.”  OUJI-CR 8-46: Defense of Self-defense – Justifiable Use of Deadly Force”

The Court of Criminal Appeals has further explained regarding this law:
“Fear alone does not justify a homicide, nor may a homicide be justified because of threats or insults by the decedent, nor may a defendant kill and be justified when acting simply on subjective honest belief. Rather, a homicide is justifiable when a reasonable person would have used deadly force. A homicide is also justifiable when the use of deadly force is reasonably necessary because the danger appears imminent.”  And finally, “The jury should view the circumstances from the viewpoint of the defendant.”

Moreover, if Zimmerman was not the aggressor (as defined above), he would have no duty to retreat in Oklahoma.  “A person who (was not the aggressor)/(did not provoke another with intent to cause an altercation)/(did not voluntarily enter into mutual combat) has no duty to retreat, but may stand firm and use the right of self-defense.”  (OUJI-CR-8-52)

When this case finally goes to trial in Florida, it will be difficult for observers to follow the evidence in the media because the smallest details in evidence can be significant, and the contexts of those details matter a lot.  It requires considerable time and patience to present all that is necessary for a full understanding of those details and those contexts, and headline news does not have that patience nor give that time. This is one of the reasons trial judges warn juries not to read or listen to news reports of the case they are hearing.

Public officials always tout their programs as successes.  But sometimes that success is make believe.  When public officials are in charge of reporting the program’s results, the reporting merits watching.

The New York Police Department is now suspected of manipulating their crime statistics to make the results appear to show lower crime.  Compstat is a computerized mapping system that tracks criminal patterns credited with reducing major crimes.  But current and former officers have voiced concerns that the program has created intense pressure to reduce crime each year to reduce crime each year and has led some supervisors to misclassify major crimes.

A year ago, an academic survey that included more than 100 retired police officers who were captains and higher-ranking reported being aware of ethically inappropriate changes to crime statistics in the major categories of felonies measured by CompStat.  An investigation is underway by the Internal Affairs Bureau that crime complaints in the 81st Precinct in Brooklyn were intentionally downgraded to make the number of major crimes appear lower.

Now the police commissioner has appointed a panel to look into the integrity of the department’s internal crime-reporting system.  Commissioner Raymond Kelly has announced the creation of the Crime Reporting Review Committee and said the committee would have broad access to the people and documents to review the Police Department records, tracks, and audits its crime numbers.   He explained the panel was formed, not only to maintain the confidence of the public but because reliable crime statistics are necessary for effective planning and evaluation of crime-reduction strategies.

Of course, Kelly has always downplayed criticism of the program.  He said that already the police department’s Quality Assurance Division has been monitoring crime reports.  In reviewing 50,000 arrest reports a year, it found only a 1.5 per cent miscalculation rate.

The chief spokesman for the department, Paul Brown, explained the panel was created because there was a “lot of false or unfair accusations against the Police Department.”   The panel will have 3-6 months to complete its study.  It is composed of three members, all of whom have worked in the United States Attorney’s office in the Southern District of New York.  They are David Kelley, who was United States Attorney in that office from 2003 to 2005, Sharon McCarthy who was special counsel to Governor Andrew Cuomo when he was attorney general of the State of New York, and Robert Morvillo, a noted criminal defense lawyer who may be remembered for defending Martha Stewart.

Brown said the department had 100 people assigned to auditing, who routinely audit each precinct each year, examining at least 600 cases in each station house every 12 months.

Peter Vallone, chairman of the New York City Council public safety committee, has been gathering evidence for months to prepare for his own hearing on the issue.  He says he will now wait until the panel has delivered its conclusions.  He asserts his own belief that “the statistics were in fact being manipulated.”  He says he has spoken to many current and former police officers who have corroborated that fact but who have refused to go on the record.

In 2005, Mark Pomerantz as chairman of the mayoral commission created to monitor the Police Department’s project to root out corruption told the City Council’s public safety committee that the commission had sought to review reports of fraudulent claims for police overtime and charges of sexual misconduct and domestic violence by police officers, but was stymied by the department’s failure to provide information.