Race, Knives, & Fists: More on the Jason Vassell Case

Back in February I wrote a post complaining that I couldn't figure out whether the charges were justified against Jason Vassell, a black student charged with 2 counts of aggravated assault and battery with a dangerous weapon under (I believe) MGL Chapter 265: Section 15A:

(c) Whoever:

(i) by means of a dangerous weapon, commits an assault and battery upon another and by such assault and battery causes serious bodily injury;
. . .
shall be punished by imprisonment in the state prison for not more than 15 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

(d) For the purposes of this section, "serious bodily injury" shall mean bodily injury which results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.

There has been a rather strident campaign launched in support of Mr. Vassell and my former post elicited a response which laid out the factual position claimed for Mr. Vassell and asked me to read the Defense's Motion to Dismiss.

I did. It moved me much further along the line toward belief in Mr. Vassell's guilt of A&B (the gradation of the appropriate final conviction I am still uncertain of). Let me explain.

The Law

Apparently Massachusetts allows for the pretrial dismissal of a case if 3 conditions are met:

In order to obtain a dismissal on the basis of selective enforcement, the defendant must initially offer evidence that reasonably permits an inference of unlawful discrimination by showing that

(1) a broader group of persons than those prosecuted has violated the law;

(2) the failure to prosecute others was either consistent or deliberate; and

(3) the decision not to prosecute others was based on an impermissible classification factor such as race, religion, or sex.

If the defendant satisfies that initial burden, the Commonwealth must then rebut the inference that there has been selective enforcement, or the case will be dismissed.

Commonwealth v. Palacios Docket 05-P-52

Defense counsel does yeoman's work trying to stretch this test to cover the facts of the case at hand. He expends a great amount of effort showing that the "victims" in this case were brutish, aggressive, racist cretins. He shows some strong indications that law enforcement jumped to some improper conclusions. Yet, he never gets past the first test.

The way the defense tries to get past the first test is to conflate the assault by one of the "victims" and the assault and battery by the other "victim" on Mr. Vassell with the assault and battery with a weapon by Mr. Vassell. There are two flaws in this. First, neither of the "victims" used a weapon as required by the statute Mr. Vassell is charged under and thus could not have been part of the same group as Mr. Vassell. Second, it's doubtful that the case from which this test comes is talking about a small group. Palacios is about a claim of selective enforcement of DUI and driving with a suspended license against a driver based upon his ethnic background. The "group" would be all drivers - a rather large group.

Even if a group of 3 people was sufficient, the presence of only one weapon, the knife held by Mr. Vassell, causes the defense's argument to fail the second test. There cannot be a consistent or deliberate failure to prosecute the "victims" because it is impossible to charge them under the same law.

The Tactics

Why would defense counsel put this argument forth? Because Mr. Vassell is in a world of hurt. By the defense's own statement of facts after the initial conflict Mr. Vassell picked up a knife, carried it to the location of the second conflict, and drew it before he was physically attacked.

I don't know Massachusetts case law, but if it is anything like Virginia, the use of fists (as the victims did) carries with it a inference that the intent is not lethal while the use of a knife (as Mr. Vassell did) carries the opposite inference. When Mr. Vassell brought and drew a knife he unilaterally escalated to the use of lethal force. On the facts, it appears that Mr. Vassell is guilty of that which he is charged.

On the other hand, Paracios also states that in Massachusetts

If the defendant's charge of racial profiling is not established prior to trial, it may not subsequently be raised again as a defense. However, we distinguish between racial profiling and racial bias. Denial of the motion to dismiss does not by itself eliminate the right of either party to challenge at trial the testimony of a witness on the ground of racial bias. The right to cross-examine a witness regarding racial bias is not unfettered, however, and the judge may reasonably limit the extent and scope of cross- examination on this, as on any other, subject. Where the defendant makes no plausible showing to support his claim of racial bias, the judge may prohibit reference to a witness's alleged bias altogether.

In other words, the defense might not have the law or facts of the second conflict on its side, but it has all sorts of impeachment evidence which it could use to make the prosecution's "victims" look very bad and damage law enforcement witnesses as well. And it's just demonstrated that to the prosecution.

This motion strikes me as a gambit played as part of negotiating a plea. The defense is showing that it will move forward with self defense bolstered by the ability to impeach the victims to shreds. Still, it has to take into account the fact that Mr. Vassell brought a knife to a fist fight and drew it first. In the end, I'd be surprised if this went to trial because of uncertainty on both sides (unless it has become so blown up that one side or the other won't back down or the facts are even more anti-defendant than the motion lets on).

How Long Can a Judge Keep Someone Under Threat of Imprisonment?

As a comment on another post, Tony asks:

Maybe some one can help me understand something as follows. (1) Can a defendant be placed on probation for a term exceeding what the original sentence would have been,i.e. (2) in a class 1 misdemeanor can the defendant be put on probation for three years when the sentence is 12 months with 11 suspended for three years, with "indefinite" local probation? and (3) how long would the [indefinite] probation be, three years or 12 months?

[1]It's an interesting question and the waters are muddied by the fact that there are two separate things which occur under Virginia law, the period of probation and the period of the suspended sentence. As best I can define the two, the period of a suspended sentence is how long an offender can be hauled back into court to receive time "for any cause the court deems sufficient" (§ 19.2-306) and probation is the period of time the offender has someone specifically assigned to be her caretaker. Unfortunately, in both statutes and judicial decisions, there has been a loose usage of these terms. Sometimes they are used in parralell, sometimes they have separate meanings, and sometimes they seem to be used as synonyms. It confuses things.

[2] A defendant can have his sentence suspended for as long as the judge determines to be "a reasonable time, having due regard to the gravity of the offense." Va Code § 19.2-303.1. In other words, if the judge decides an offender's brandishing a firearm misdemeanor needs to have the sentence suspended for a period of 20 years, the judge can so order.

[3] Indefinite probation usually means that probation shall end at the discretion of the probation officer after certain conditions have been met. I couldn't find any limits to the length of probation, but logic would seem to indicate it could go no longer than the period during which the sentence is suspended.

[4] A common practice in Virginia courts is to usually limit most misdemeanors to a single year period of time suspended and in cases that the judge sees as more egregious three years of time suspended. I cannot find any statutory reason for this and suspect it may be ensconced in Virginia law via Smith v. Underwood, 1985, Va. App. No. 0316-85. In this decision a habeas was rejected because it was based upon new claims, but the court also accepted, without any discussion, 3 years time suspended on a misdemeanor.

[5] Furthermore, we find no ambiguity in the June 3, 1982, sentencing order that would support Smith's claim that the misdemeanor sentence suspension could not be revoked. Its terms are clear. Both the felony and misdemeanor sentences were suspended and Smith was placed on probation for a period of three years.

[6] Nevertheless, nothing in the statutes or any cases I've seen seems to limit the length of time a person can have his sentence suspended if the judge is specific about the length.

[7] If the judge is not specific about the length of time for the suspension it defaults to the length of the maximum potential sentence for the crime (ie: 1 year for petit larceny & 20 years for grand larceny). § 19.2-306. However, a judge can extend both probation and suspension. Under § 19.2-306(C), if a judge "finds good cause to believe that the defendant has violated the terms of suspension" the suspension is revoked and the sentence is imposed. However, the judge can resuspend the sentence - leaving him the option of setting a new length of time for the suspension. Under § 19.2-304, the judge can alter probation upon the convening of a hearing; as the statute states no other conditions, it appears that the judge has complete discretion in this.

Jury Today

Sorry folks, no post today. I'm off living the pilot for a new TV show:

Who Were the Colombine Kids Really?

"They weren't goths or loners.

They . . . weren't in the "Trenchcoat Mafia," disaffected videogamers who wore cowboy dusters. The killings ignited a national debate over bullying, but the record now shows Eric Harris and Dylan Klebold hadn't been bullied — in fact, they had bragged in diaries about picking on freshmen and "fags."

Their rampage put schools on alert for "enemies lists" made by troubled students, but the enemies on their list had graduated from Columbine a year earlier. Contrary to early reports, Harris and Klebold weren't on antidepressant medication and didn't target jocks, blacks or Christians, police now say, citing the killers' journals and witness accounts. That story about a student being shot in the head after she said she believed in God? Never happened, the FBI says now."

<much more>

Stare Decisis:Where Should the First Thought Come From?

As long as statutes are written there will be two truths which require judicial decisions. First, there will be ambiguities written into the statutes/constitutions (textual ambiguity). Second, circumstances will arise which may, or may not, fall under a particular statute or constitutional clause (situational ambiguity). It follows that, if we are to be consistent, once a judicial decision has been made clearing up the difficulty this interpretation of the law should be universal and constant (so long as the decision is appropriate to the language of the pertinent statute/constitution¹).

[1] The best method of interpreting a statute is to use textual interpretation doctrines such as the Rule of Lenity (in criminal cases), expresio unius est exclusio alterius, noscitur a sociis, or ejusdem generis. This type of interpretation gives the most honest reading of a statute.

[2] In the few cases when the meaning of a statute/constitutional provision cannot be determined textually, historical meaning and legislative meaning analyses should be the next step. Historical meaning would look toward dictionaries or writings of a particular time to determine the meaning of the ambiguous word or phrase. Legislative meaning would primarily look toward other statutes with similar phrasing to clear up the ambiguous wording.

[3] If this fails, the next step is historical intent or legislative intent. This is the point at which interpretative tools become shaky. Historical intent is notorious because it's often one sided and/or incomplete. No one knows what every single member of the constitutional convention intended and it's unlikely that any historical analysis has proven what even a majority of them intended. Legislative intent suffers the same flaw; it's near impossible to prove what a majority of Congress thought about a statute passed as part of a two hundred page omnibus bill.

[4] In the very few cases which get through all the above, there's the appeal to other authority. In the past this might have been to the Great Thinkers: The Philosopher, Aquinas, Maimonides, Averroes, Hume, Kant, Locke, Burke &cetera. In modern times this is more likely to take the form of decisions by foreign courts. While both of these can shore up a decision, they are the shakiest form of interpretation. This is primarily because they do not have any anchors in the American legal system. We should always be suspicious that these sources are appealed to because American jurisprudence leans the other way and some source is needed to allow the judge to reach the conclusion he wants to reach. After all, how many people in modern times receive an education to the level that they even know who Averroes was, much less can quote his philosophy? And, why would an American judge know about an opinion published in Australia 7 years ago?²

Personally, I'd like to see a lot less appeal to authority in our courts. Beyond steps [1] and [2] above, it all looks like the judge has come to a decision and is just looking for justification. Assuming a previously unresolved ambiguity, it should be perfectly acceptable to state that ambiguity, state why the ambiguity cannot be cleared up by [1] and [2], and then set out the court's decision. If it is consistent with statute then good precedent has been set.<sup>3



1</sup> The great flaw of deference is when it reaches a near mystical level and is slavishly followed no matter how out of touch a decision may be with the actual language of a statute.

² The Australian Supreme Court could publish the most amazing, insightful, breath-takingly wonderful piece of reasoning on the right to free speech tomorrow and I might, MIGHT, find out about it because I get ABC's feed on my Twitter account. It's not exactly easy to research case law from another country.

³ Yes, I know this will never happen. Lawyers are mistaught from their first day in law school to over-cite, to always have a source. Original, uncopied thought is the bugaboo we are all taught to fear.

Interesting Question

Here's an interesting question which came up in court yesterday.

Under Brady v. Maryland et al, the prosecution is required to to turn over evidence which is exculpatory or impeachment material. However, what if there is no doubt the defendant did the crime (uncontested) and the defendant is trying to get evidence under Brady which would be used solely in an affirmative defense?

I did a quick bit of research yesterday and the cases clearly state that there is no obligation to turn over such evidence prior to a guilty plea. Still, that begs the question, is it constitutionally required at all? I never could find a case which specifed one way or the other.

Anybody know a case on point?

Addendum: For some unknown reason, Blogger isn't allowing me to put comments on this post. So, I thought I'd post them here.

ParatrooperJJ: In general, I agree that if it will not endanger third parties or other investigations (& any other such caveat which is slipping my mind at the moment), the prosecutor should share all evidence possible. However, consider a pro se defendant who is a felon caught with a firearm. He does not deny possession. Rather, he informs the court that he will be raising a duress/society made me do it/it's a dangerous world affirmative defense. In accord with his theory, he files for pretty much every record he thinks the county has related to violent crime over the last ten years (indictments, orders of conviction, copies of plea agreements, etc.). This is clearly outside of allowed discovery in Virginia, but the pro se argues it should be allowed under Brady. Judge won't go that far, but considers ordering 5 years of orders of convictions. (facts are made up out of whole cloth, but similar to case yesterday)

This doesn't impeach anybody or tend to prove he didn't possess the firearm. Should the government be obligated? If so, what is the constitutional basis and where do you draw the line?

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Anon: Yes, an affirmative defense is a defense. However, it's a "Yeah, but . . ." defense; a defense wherein the act the prosecutor is alleging is admitted. If there was anything tending to negate the act the prosecution would clearly be required to turn it over. However, nothing tending to prove an affirmative defense negates the act. Therefore, the question is whether the prosecution is required to turn over evidence which does not tend to disprove the act because the evidence may be consistant with an affirmative defense the defendant may present at trial.

A Shank We Can All Enjoy