Tulsa County Sheriff shooting of Eric Harris

[Conan71]

Ugh...dude's full name is "Billy Joe..."

Better than Markwayne.

[Townsend]

Better than Markwayne.

I'd have to say they're at about the same "kissing cousins" level

[patric]

It seems the more light we shine on the truth, the darker the scene gets:

http://www.fox23.com/news/new-video-shows-former-tulsa-reserve-deputy-pointing-taser-weeks-before-shooting/192388310

[Conan71]

It seems the more light we shine on the truth, the darker the scene gets:

http://www.fox23.com/news/new-video-shows-former-tulsa-reserve-deputy-pointing-taser-weeks-before-shooting/192388310

There's a great three part piece in The Frontier this week which documents Bates' ineptitude leading up to the shooting of Harris.

[Vashta Nerada]

There's a great three part piece in The Frontier this week which documents Bates' ineptitude leading up to the shooting of Harris.

New defense strategy: Blame the victim.

http://www.tulsaworld.com/news/courts/robert-bates-prosecutors-seek-delay-to-prep-for-defense-that/article_bfb6f9bf-9682-5109-b87e-446b0f0de38d.html

[davideinstein]

New defense strategy: Blame the victim.

http://www.tulsaworld.com/news/courts/robert-bates-prosecutors-seek-delay-to-prep-for-defense-that/article_bfb6f9bf-9682-5109-b87e-446b0f0de38d.html

Unreal.

[Conan71]

Unreal.

Not really.  Of course the victim's lifestyle choices will come into play as part of the defense.  He was a former felon on drugs and attempting to illegally sell firearms to undercover cops.  

I think we all know Clark Brewster is a pretty skilled courtroom litigator and he commands a high price.  If you are being paid thousands and thousands by a millionaire who doesn't want to serve any time, you are going to explore and exploit every avenue possible to at least minimize your client's role in the death in the minds of jurors.  The defense client here ostensibly has a lot of money to pay for multiple expert witnesses you or I could not afford for our own defense.  

If you are a marquee defense attorney representing a wealthy client, it's what you do.  If you want to save 15% on car insurance...wait, wrong thread.

Harris was going to die some day anyhow, so who's to say that wasn't his day after all since he was on meth and may have had heart disease from years of not living a clean life, right?  

They did say on the KRMG news this morning that the autopsy report shows Harris was apparently not properly intubated by EMS personnel.  I suspect that was probably leaked by someone "close to the case".

[cannon_fodder]

Too bad the State cut (and keeps cutting) the OSCN budget or we could see what they were talking about. None of the documents filed have been logged or scanned since 4/6/16:

http://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2015-1817&cmid=2827287
- - -

I don't practice criminal law. But this case is obviously interesting and Brewster is obviously a talented attorney, so it is worth following. Here's my half a cent (only worth half a cent because I don't do criminal law! Someone correct my ignorance):

On the defense itself:

Obviously causing the death of a human is an element of the crime. There is scant little else to defend this action other than attacking the elements themselves. Bates has essentially admitted negligence (I meant to grab the taser and messed up, sorry). And there is a dead guy.  So the only thing TO attack is that the negligence caused the death (causation). That or go for jury nullification (which I think what the "stress of being an officer" defense is meant to do).

The argument Brewster is going for seems to be that the guy had a drug problem, a heart problem, and the EMTs messed up the intubation. A healthy person with good EMTs would not have died. Two defenses in one really: 1) the victim would not have died but for the fact he was unhealthy, and 2) the victim would not have died but for bad EMTs. My guess is both fail, but Brester is doing his damnedest. Just seems there isn't much to work with.

The general view in such cases is that the medical care cannot be a defense unless the original act would not have caused death. While the medical care may have failed to prevent the death of the victim, it did not cause it. To wit:

One who has inflicted an injury which is dangerous, that is, calculated to destroy or endanger life, is not relieved of responsibility by the fact that the immediate or a contributing cause of the death was erroneous or unskillful medical treatment or care of the injury by deceased, or by a physician, or by nurses or other attendants. Thus, it is not a defense that the victim died during or as the immediate result of a surgical operation rendered necessary by the existence of the wound, or that there was a possible mode of treatment which might have averted death, or that deceased might have recovered if he had submitted to an operation, or had adopted a different diet.

http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=649+P.2d+807

While I don't have time to research the "a healthy person would not have died from a 357 gunshot wound to the back" defense, the general rule is that you take your victim as you find them. The charged crime is not an "intent" crime (and even then intent can be imputed. If you intended to punch me in the head but didn't intend for me to fall down, break my neck and die... it is still murder). So all that really matters is that the negligence led to the death.  That the victim was unhealthy is largely irrelevant to that question... otherwise it's open season on Okies because most of us are fat, out of shape, heart problem, pill addicted, drinking or smoking unhealthy people (USA! USA! USA!).

I'm happy to be corrected, but it seems to me that unless they can prove that the victim happened to die from something wholly unrelated to the .357" hole through his chest and that the gunshot was a mere coincidence, I don't think the defense holds water. "She was really old, yes it appears she was raped to death - but a 20 year old raped in a similar fashion would not have died from a heart attack." Seems about the same as "He was really unhealthy, yes it appears he was killed by a 357 shot to the back - but a healthy man shot in a similar fashion would not have died from a heart attack."

Happy to see case law to the contrary. Was hoping to read the Defense and prosecution briefs.


Delay:

Brewster document dumped 2,600 pages and apparently introduced new experts in the last week or ten days... then tells the cameras that he is shocked that the prosecution wants a delay and that justice demands that the trial go forward! Just so much bluster.  According to the article, the prosecution doesn't even have the experts' conclusions. but, Brewster's job is to get an advantage for his client and he almost always seems to do that.

Apparently the experts were listed, but not the substance of their testimony. In a civil trial, their testimony would be excluded. Criminal defendants have more rights, but you generally can't just spring new things. Trials are theater, not "shock and awe" with surprises around every corner.  I'm thinking the document dump is enough to grant a delay and Brewster will be required to provide the conclusions of the experts he has hired. Just a guess, I try not to do any criminal work.
- - -

The entire case boils down to this jury instruction:

OUJI-CR 4-103

MANSLAUGHTER IN THE SECOND DEGREE - ELEMENTS

No person may be convicted of manslaughter in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a human;

Second, the death was unlawful;

Third, the death was caused by the culpable negligence of the defendant(s).


OUJI-CR 4-104

MANSLAUGHTER IN THE SECOND DEGREE -

CULPABLE NEGLIGENCE DEFINED

The term "culpable negligence" refers to the omission to do something which a reasonably careful person would do, or the lack of the usual ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.

[patric]

They did say on the KRMG news this morning that the autopsy report shows Harris was apparently not properly intubated by EMS personnel.  I suspect that was probably leaked by someone "close to the case".

Payback for EMSA not going along with the official version that said Harris "confessed to being on PCP" at a time when paramedics said he was unconscious?

[Conan71]

Too bad the State cut (and keeps cutting) the OSCN budget or we could see what they were talking about. None of the documents filed have been logged or scanned since 4/6/16:

http://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2015-1817&cmid=2827287
- - -

I don't practice criminal law. But this case is obviously interesting and Brewster is obviously a talented attorney, so it is worth following. Here's my half a cent (only worth half a cent because I don't do criminal law! Someone correct my ignorance):

On the defense itself:

Obviously causing the death of a human is an element of the crime. There is scant little else to defend this action other than attacking the elements themselves. Bates has essentially admitted negligence (I meant to grab the taser and messed up, sorry). And there is a dead guy.  So the only thing TO attack is that the negligence caused the death (causation). That or go for jury nullification (which I think what the "stress of being an officer" defense is meant to do).

The argument Brewster is going for seems to be that the guy had a drug problem, a heart problem, and the EMTs messed up the intubation. A healthy person with good EMTs would not have died. Two defenses in one really: 1) the victim would not have died but for the fact he was unhealthy, and 2) the victim would not have died but for bad EMTs. My guess is both fail, but Brester is doing his damnedest. Just seems there isn't much to work with.

The general view in such cases is that the medical care cannot be a defense unless the original act would not have caused death. While the medical care may have failed to prevent the death of the victim, it did not cause it. To wit:

http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=649+P.2d+807

While I don't have time to research the "a healthy person would not have died from a 357 gunshot wound to the back" defense, the general rule is that you take your victim as you find them. The charged crime is not an "intent" crime (and even then intent can be imputed. If you intended to punch me in the head but didn't intend for me to fall down, break my neck and die... it is still murder). So all that really matters is that the negligence led to the death.  That the victim was unhealthy is largely irrelevant to that question... otherwise it's open season on Okies because most of us are fat, out of shape, heart problem, pill addicted, drinking or smoking unhealthy people (USA! USA! USA!).

I'm happy to be corrected, but it seems to me that unless they can prove that the victim happened to die from something wholly unrelated to the .357" hole through his chest and that the gunshot was a mere coincidence, I don't think the defense holds water. "She was really old, yes it appears she was raped to death - but a 20 year old raped in a similar fashion would not have died from a heart attack." Seems about the same as "He was really unhealthy, yes it appears he was killed by a 357 shot to the back - but a healthy man shot in a similar fashion would not have died from a heart attack."

Happy to see case law to the contrary. Was hoping to read the Defense and prosecution briefs.


Delay:

Brewster document dumped 2,600 pages and apparently introduced new experts in the last week or ten days... then tells the cameras that he is shocked that the prosecution wants a delay and that justice demands that the trial go forward! Just so much bluster.  According to the article, the prosecution doesn't even have the experts' conclusions. but, Brewster's job is to get an advantage for his client and he almost always seems to do that.

Apparently the experts were listed, but not the substance of their testimony. In a civil trial, their testimony would be excluded. Criminal defendants have more rights, but you generally can't just spring new things. Trials are theater, not "shock and awe" with surprises around every corner.  I'm thinking the document dump is enough to grant a delay and Brewster will be required to provide the conclusions of the experts he has hired. Just a guess, I try not to do any criminal work.
- - -

The entire case boils down to this jury instruction:

OUJI-CR 4-103

MANSLAUGHTER IN THE SECOND DEGREE - ELEMENTS

No person may be convicted of manslaughter in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a human;

Second, the death was unlawful;

Third, the death was caused by the culpable negligence of the defendant(s).


OUJI-CR 4-104

MANSLAUGHTER IN THE SECOND DEGREE -

CULPABLE NEGLIGENCE DEFINED

The term "culpable negligence" refers to the omission to do something which a reasonably careful person would do, or the lack of the usual ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.

Doesn't it seem a bit odd that Bates would choose to fight rather than a plea deal:

§21-722. Manslaughter in the second degree a felony - Penalty.

Universal Citation: 21 OK Stat § 21-722 (2014)
Any person guilty of manslaughter in the second degree shall be guilty of a felony punishable by imprisonment in the State Penitentiary not more than four (4) years and not less than two (2) years, or by imprisonment in a county jail not exceeding one (1) year, or by a fine not exceeding One Thousand Dollars ($1,000.00), or both fine and imprisonment.

R.L. 1910, § 2331. Amended by Laws 1997, c. 133, § 236, eff. July 1, 1999; Laws 1999, 1st Ex.Sess., c. 5, § 140, eff. July 1, 1999.

NOTE: Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 236 from July 1, 1998, to July 1, 1999.

With no priors, isn't there a chance he could have gotten a suspended sentence?  I can understand the idea of not wanting to spend time locked up, if a plea deal was only offered with time behind bars I get fighting it, but seems like it might have been in everyone's best interest for a 2nd degree manslaughter to plea and walk away with some stipulations.

[cannon_fodder]

I agree Conan. The guy isn't a danger to society as long as you take away his badge. Second Degree Manslaughter often resolves without time spent "in."

The DA might feel some pressure to get some jail time. Also, Bates might want a conviction that doesn't interfere with his right to carry. Sometimes there are other things on the line - a conviction or guilty plea other than a suspended (it never happened) could result in retirement consequences, travel restrictions to some countries (condo in the Bahamas?), or whatever else I can't think of. I had a friend plead no contest to a DUI to get it down to a misdemeanor with a fine and community service, but was still excluded from Canada for 5 years.

So its hard to tell.

[swake]

Doesn't it seem a bit odd that Bates would choose to fight rather than a plea deal:

With no priors, isn't there a chance he could have gotten a suspended sentence?  I can understand the idea of not wanting to spend time locked up, if a plea deal was only offered with time behind bars I get fighting it, but seems like it might have been in everyone's best interest for a 2nd degree manslaughter to plea and walk away with some stipulations.

A late friend of mine got popped growing pot in his dorm closet at TU back in the late 80s. He was guilty and had no reasonable defense but his dad was a big local bankruptcy lawyer and his grandfather a big local developer. When he went to trial his grandfather happened to be poker buddies with the judge and just happened to lose something like 20k one night to said judge. The judge shockingly and against all odds tossed the case on some ridiculous technically and my buddy walked. Despite being very, very guilty.

Bates couldn't possibly have any connections like that at the courthouse could he?

[Conan71]

I agree Conan. The guy isn't a danger to society as long as you take away his badge. Second Degree Manslaughter often resolves without time spent "in."

The DA might feel some pressure to get some jail time. Also, Bates might want a conviction that doesn't interfere with his right to carry. Sometimes there are other things on the line - a conviction or guilty plea other than a suspended (it never happened) could result in retirement consequences, travel restrictions to some countries (condo in the Bahamas?), or whatever else I can't think of. I had a friend plead no contest to a DUI to get it down to a misdemeanor with a fine and community service, but was still excluded from Canada for 5 years.

So its hard to tell.

Wait...

You just answered my question and I should have known this because my wife is an insurance agent.

You get a felony and there goes your insurance license.  And yes, he's still in the insurance business as a principal in a brokerage.

Bates couldn't possibly have any connections like that at the courthouse could he?

This case is so closely watched, I doubt he's going to end up with any favors not afforded other wealthy defendants who can afford Brewster.

[Vashta Nerada]

Not really.  Of course the victim's lifestyle choices will come into play as part of the defense.  He was a former felon on drugs and attempting to illegally sell firearms to undercover cops.  

I think we all know Clark Brewster is a pretty skilled courtroom litigator and he commands a high price.  If you are being paid thousands and thousands by a millionaire who doesn't want to serve any time, you are going to explore and exploit every avenue possible to at least minimize your client's role in the death in the minds of jurors.  The defense client here ostensibly has a lot of money to pay for multiple expert witnesses you or I could not afford for our own defense.  

If you are a marquee defense attorney representing a wealthy client, it's what you do.  If you want to save 15% on car insurance...wait, wrong thread.

Harris was going to die some day anyhow, so who's to say that wasn't his day after all since he was on meth and may have had heart disease from years of not living a clean life, right?  

They did say on the KRMG news this morning that the autopsy report shows Harris was apparently not properly intubated by EMS personnel.  I suspect that was probably leaked by someone "close to the case".

A propensity to bleed out from bullet holes is not a "pre-existing medical condition"

Just out:  "Why Eric Harris Deserved To Die" by Clark Brewster. 232 pages, bound volume.  Free shipping by Amazon if ordered by April 1.

[heironymouspasparagus]

The argument Brewster is going for seems to be that the guy had a drug problem, a heart problem, and the EMTs messed up the intubation. A healthy person with good EMTs would not have died. Two defenses in one really: 1) the victim would not have died but for the fact he was unhealthy, and 2) the victim would not have died but for bad EMTs. My guess is both fail, but Brester is doing his damnedest. Just seems there isn't much to work with.

While I don't have time to research the "a healthy person would not have died from a 357 gunshot wound to the back" defense, the general rule is that you take your victim as you find them. The charged crime is not an "intent" crime (and even then intent can be imputed. If you intended to punch me in the head but didn't intend for me to fall down, break my neck and die... it is still murder). So all that really matters is that the negligence led to the death.  That the victim was unhealthy is largely irrelevant to that question... otherwise it's open season on Okies because most of us are fat, out of shape, heart problem, pill addicted, drinking or smoking unhealthy people (USA! USA! USA!).

His best bet is to get the case assigned to Judge Kurt Glassco....he seems to be connected well enough to do that....then go for no jury trial, and just let Tim Harris' DA office work it out amongst themselves... problem solved.  Another rich guy gets to skate.

Like Mark Allen Eaton with Glassco, Harris' office, and the good ole boy network, when Eaton tried to kill a couple of teenagers....

Kinda makes one wonder what the Chief Judge of Probate Division is doing presiding over criminal attempted homicide cases...??  Oh, yeah...I forgot... Connected!