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PostPosted: Fri Jan 11, 2002 11:06 pm 
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The whole MA vs. the law in court has many different spins.

Years back I knew a fellow who was a phenominal martial artist, and had retired (we presume) from special forces. Gary was a genius with his legs, but had the EQ of a young adolescent. I used to talk with him a lot, and would often do what I could to protect him from himself, so to write. He had many altercations in bars and such as part of his sordid, after-military experience.

One day someone called the police on him because he and his wife were having a very noisy "argument." As with all domestic cases, 4 or 5 officers showed up at the door. Gary wasn't very congenial, and words were exchanged.

As the last person was leaving the premises, Gary took his foot and slammed the door shut, hitting the last guy's rear. Within a few seconds, all the officers were back in the apartement. One of them held a gun to Gary while several others beat the snot out of him (not really a fight you can win). He blacked out for a few seconds from the beating, waking up to one guy sitting on his chest and another saying "That's enough." He had 2 black eyes, a broken cheekbone, a broken nose, etc., etc.

At the trial, the police brought Gary's martial arts background in as part of the testimony, as a reason for their extreme level of force. The judge was not very sympathetic to Gary. He was convicted of assaulting a police officer. There was no civil recourse for him.

Bottom line - it (the MA) could be an issue, depending on the circumstances.

- Bill


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PostPosted: Sat Jan 12, 2002 1:49 pm 
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http://dailynews.yahoo.com/h/ap/20020111/ts/hockey_death.html

Convicted of manslaughter.


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PostPosted: Sun Jan 13, 2002 12:12 am 
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Note that he was convicted of involuntary manslaughter, which is reduced from the manslaughter conviction the prosecution was wanting. I read somewhere else where the maximum he could get during sentencing is five years.

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Glenn Humphress
Lincoln, NE


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PostPosted: Sun Jan 13, 2002 12:41 am 
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Bill wrote: <BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
At the trial, the police brought Gary's martial arts background in as part of the testimony, as a reason for their extreme level of force. The judge was not very sympathetic to Gary. He was convicted of assaulting a police officer. There was no civil recourse for him.


Sobering. You may be a "wannabe" MA, you know, a very marginal one, but by wearing MA T-shirts and other paraphernalia, including tell tale license plates on your car,and taking karate stances before an altercation, you become a "fair target" for righteous excessive force.

Again it is the "perception" that will do us in.



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Van Canna


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PostPosted: Sun Jan 13, 2002 9:49 pm 
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Location: Mansfield, MA USA
In this morning's Boston Globe, one juror already said that had he known about Costin's past record of criminal and psychiatric problems, he probably would not have voted to convict Costin. Aside from one of the likely grounds for appeal, it shows a window into the mind of a typical juror. Even though Costin's past may not have been relevent, the juror's perception of Costin changed from "victim" to troublemaker who got what he deserved.

Remember, what is "reasonable" in any given situation may boil down to what a jury of 12 decides is reasonable one year later. Sobering thought.

Norm Abrahamson


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PostPosted: Sun Jan 13, 2002 10:33 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
What damned him[junta] to a jail term was his statement (several times) of "I hit him until he stopped, then I added a few more."


Don't know where, how and when this statement was allegedly made.

Question still is: can a defendant refuse to make a statement [ or be interviewed] by investigating officers even if his lawyer is present?

Can a defendant tell the police that his lawyer will make a statement on his behalf about the details of the event? [ his defensive response action]__

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Van Canna


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PostPosted: Sun Jan 13, 2002 10:37 pm 
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From another forum: <BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>This is the kind of thing my dad warned me about when I was a teenager... a grown man in reasonably good physical condition can easily put someone in the hospital or even kill them in a brawl. It is your responsibility to avoid physical violence whenever possible, especially if you might be good at it. Even if you are in the right, you can't assume that anyone else will see it that way.

Junta's a thug who was looking to play big man. He was big man at the rink, but he'll be little man in the cell block.

Where that boy Junta is headed he's going to be a small fish swimming in a big pond with lots of sharks. His companions for the next few years will be several thousand sociopaths who could happily kill you and then go have lunch.

He's about to figure out that he's a long way from being the toughest kid on the block. Hard lesson.<HR></BLOCKQUOTE>

Pretty sobering.


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Van Canna


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PostPosted: Mon Jan 14, 2002 3:51 am 
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At some point there will be a civil suit against junta for wrongful death by the Costin’s estate.

It is doubtful that any liability insurance coverage will apply, although if he has an umbrella policy it might, at least for the cost of defense, just maybe.

The manslaughter conviction will be used against him in the civil proceedings as evidence of negligence.

Absent any insurance coverage [likely] Junta will have no deep pockets.
Still, he will have to shell out much $$$ for the civil defense.

Either the plaintiffs will name all potential defendants at the onset of the complaint or junta will implead them in due course, like the Arena, hockey league etc._ allegations will be as diverse as the imagination of the plaintiff’s__ third party plaintiff's attorneys.

Massachusetts has a joint tortfeasor’s statute, meaning that if one of the other “deep pockets” defendants is found liable of even one% negligence, it will be responsible for the entire amount of a civil award, then try to recoup a “proportionate share” against junta. Good luck.

By the time this nightmare plays out, you might think it is better not to even raise your hands in self-defense but “turn the other cheek” __

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Van Canna




[This message has been edited by Van Canna (edited January 14, 2002).]


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PostPosted: Mon Jan 14, 2002 4:40 pm 
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Van Sensei asked: "Question still is: can a defendant refuse to make a statement [ or be interviewed] by investigating officers even if his lawyer is present?

Can a defendant tell the police that his lawyer will make a statement on his behalf about the details of the event? [ his defensive response action]__"

Absolutely. When in doubt, say nothing. Your Miranda rights, including right to silence, come into play when you are in custody. If you refuse to speak to police (politely) they only have the threat of arrest. Of course at that point you have the right to remain silent. In 99 out of 100 cases, the smart thing for a potential suspect to say is, "I don't wish to speak to you officer."

Norm Abrahamson


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PostPosted: Mon Jan 14, 2002 6:24 pm 
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Van Sensei:

I have read your posts and totally agree with the statements made by you concerning the probability of civil litigation, backed by the record of the Involuntary Manslaughter conviction.

A friend of mine who is a tort attorney told me a long time ago that they do a long investigative process. He termed it "panning for gold", and as you stated the search would be for deep pockets. I am sure that in your long term career that you did plenty of investigations with a view toward determining if your insurer could get contribtuion from third party coverage.

Be as it may, tort litigation to counsel specializing in that field is like free advertsing to an actor's publicist. A high profile win, even without large fees amy be beneficial to some practitioners.

The quote that you posted from some other forum sounded like a sound bite assault using bad metaphors, and beginning with oterwise sage wisdom imparted by his father.

In the view of the person quoted, Junta was a monster.

My own impression of the jury, based only on a lot of interviews conducted by the media over the week end, is that the jury was a very bright and caring group of people.
They tried very hard to interpret the laws of self defense gleaned by them only by the judges spoken charge (instructions) and requested tapes. They were well aware of the haunting term "reasonable" as applied to the conduct of the defendant and the victim; the other relating to "reasonable doubt".
Junta also tesitified that he based the amount of force applied upon what Junta believed was necessary to subdue Costin.

Was his belief reaonable? The jurors did not think so. They did have reasonable doubts as to Junta's intention of kill or maim, and two juror's holding out for straight manslaughter were persuaded to go with the majority and convicted the defendant of the lesser crime.

Conflicting testimony by witnesses as to what was observed was a major factor in establishing reasonable doubt as to Junta's intentions.

Norm:

I agree with your statements concerning a defendant's right to remain silent and refuse to grant any interview. However, there are certain questions that the police may be entitled to ask, but only in the presence of counsel, who will make the detrmination of the accused's response.
We have all seen cases where police would be at least entitled to name, rank and serial number types of questions. Counsel has to weigh the response based on whether an answer could incriminate and failure to answer result in impeding an investigation.

I saw the juror you make reference to relate that statement on television.

There may be a lot of exclusions or inclusions to evidence and to the jury charge being the subject of appeals.

The jury has spoken and the public has been well indoctrinated in the folly of rage as opposed to reason.

The sentence is yet to be handed down and the pundits are having a field day with predicting the sentence.

The statute permits a maximum of 20 years not three to five as some have reported.

Three to five is a guideline.

In Massachusetts the judge and not the jury is responsible for the sentence. There will be pre-sentence reports furnsihed by the Probation Department, and augmented by requests for inclusions by defense counsel.

I will go against some of the pundits and become one myself by predicting 7 to 10 years, with 5 suspended and community service by visiting youth sports orgnaization and lecturing or at schools putting our the word that rage is wrong.

One cannot be dispassionate for the agony and effect on both familes and the children in particular.

I have faith that the trial judge is in the best position to mete out the punishment, and can do so with his experience as both an attorney and a jurist. I certainly would not like that responsibliity.

People involved as officials, sports moms and dads, and all involved with youth sports have been interviewed in local papers and have commented on some of the rude and rage conduct displayed.

I sincerely hope that this is not just a phase or mood soon forgotten.

The martial arts community has displayed a profound interest in this subject, which should be taught to students as part of the credes, rules, regulations and historical aspect taught by all credible martial arts organizations.

Alan K


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PostPosted: Tue Jan 15, 2002 7:29 am 
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Alan,

You said;

"Conflicting testimony by witnesses as to what was observed was a major factor in establishing reasonable doubt as to Junta's intentions."

Could you tell us what the versions were in regard to what the witnesses saw? And how this swayed the jury.

nick


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PostPosted: Wed Jan 16, 2002 12:09 am 
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Student,
Good post, and I understand. But.. <BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
But the police do not have to accept that, per se. Yes, they will get the written statement, but they don't have to let the attorney dictate the method of examination, except as insofar as the attorney can always say "All right, that's it."


True. But can the defendant just say:
“sorry Mr. Policeman, I am not talking to you__ I have the right to remain silent”
Or can he say ” I am pleading the fifth”__

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Disadvantages: it wouldn't tax a second semester law student to make such a process look like it was scripted and unreliable.


True. But why is it that a criminal defendant does not have to take the stand, yet he might be penalized for not submitting to a police interrogation?

Funny things happen to a person's brain under
the stress of a police interrogation, lawyer or no lawyer present.

The pressure to talk will be relentless and the defendant will lose all perspective.



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Van Canna


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PostPosted: Wed Jan 16, 2002 5:24 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>However, there are certain questions that the police may be entitled to ask, but only in the presence of counsel, who will make the determination of the accused's response.
We have all seen cases where police would be at least entitled to name, rank and serial number types of questions. Counsel has to weigh the response based on whether an answer could incriminate and failure to answer result in impeding an investigation.<HR></BLOCKQUOTE>

The problem that I see here is that once a police interrogation gets underway, even in the presence of defense counsel, especially if videotaped,the defendant , in his nervousness, will not be able to think clearly and trip himself up with his lawyer not having enough time to "muzzle him" in time.

I have been subjected to this type of pressure while being deposed on a number of occasions,and while appearing at trials as a witness, having made statements without thinking clearly, that made my attorney cringe.

I have also been told by lawyers that they had made a mistake in allowing their client to be interviewed/interrogated even in their presence , and that they had "hurt" their clients by allowing the interview/interrogation.

Of course, we would not impede an investigation, so the question is: can the attorney tell the police that he will provide them with a written report of his client's description of the events without subjecting him to a police interrogation?

I have some real horror stories to tell in my past experience of handling fatalities where defendants really dug their own graves by making statements they later did not even remember they made.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
there are certain questions that the police may be entitled to ask.


True. But can counsel say..fine..we will give answers in writing tomorrow?


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Van Canna

[This message has been edited by Van Canna (edited January 15, 2002).]


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PostPosted: Wed Jan 16, 2002 5:43 am 
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Yes.

He can.

But the police do not have to accept that, per se. Yes, they will get the written statement, but they don't have to let the attorney dictate the method of examination, except as insofar as the attorney can always say "All right, that's it."

Advantages: your client does not put his foot in (or through!) his mouth.

Disadvantages: it wouldn't tax a second semester law student to make such a process look like it was scripted and unreliable.

Look at the parents of Jon-Benet Ramsey. They have maintained innocence, given statements through counsel, etc. How are they faring in the court of public opinion, let alone the National Enquirer?

Everything has a trade-off.


student


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PostPosted: Wed Jan 16, 2002 2:45 pm 
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Van, sensei and the group:

The question concerning my quote:

"Conflicting testimony by witnesses as to what was observed was a major factor in establishing reasonable doubt as to Junta's intentions"

I made that statement based upon a television interview with a juror who did not elaborate on the conflicts, but did mention with reference to the punches that were seen to be thrown, the count varied from three to a dozen. From my memory, Junta's son tesitified to three quick punches and the lady whose arm was allegedly bruised stated that she thought that about twelve punches were thrown.

The juror also mentioned that he and other jurors questioned the accuracy of the witness observations based not only on the conflict of the statements, but on the ability of the witnesses to observe the scene both in context as to time and distance including the vantage point of the witnesses.

We are all at many times deficient in our observations although we see them and hear them accurately in our minds.

Example: You meet a person at a social function and remember that person's visage in a certain way. You don't see that person for (as an arbitrary example) for three months. You meet once again as you pass that person as you walk into the room and do not recognize he or she. The person then walks over to you and says "Do you remember me from Joe's birthday party?"

You are amazed at how different that person looked as opposed to your visualization.

This is a major flaw in our system and many an innocent person has been executed based on defective identification; and often the witness will not admit a less than perfect memory because of stubborn pride.

In this case the jury took 14 hours to deliberate and considered all the evidence.

I agree with Student and Van, sensei in their posts concerning the ability of the defense attorney to prevent harmful pre-trial statments.

It is a large equation to deal with.

On the one hand it is the duty of any citizen including a detained person to cooperate in a criminal investigation.

Aside from the fear that the conduct of the person being sought to give testimony might imply guilt if the alleged witness fails to make any statement, counsel may caution to not answer any question which may tend to incrimanate that person.

The prosectuion can always petiton the court to compel answers and a hearing can be held which would subject the witness to contempt proceedings if questions outside of a given parameter were not answered.

Van cites great examples from his own experience as to how persons may perform or answer under the pressure of a formal atmosphere. (Like an MA student testing for shodan?)

It is very difficult for counsel to imbue the accused with what to answer and what not and to say in any pre trial interview.

It is not uncommon for an accused person who is on trial for a crime and who has been carefully prepared for trial, to blurt out harmful statements when on the stand.

Van gives good examples from his own experience.

Just to lighten things a bit some 15 years ago I was defending client who was on trial for OUI (operating under the influence) in the Concord, Massachusetts district court.
The trial was before the judge and at this time, one could appeal a conviction to a jury.

The prosecutor began his case by putting the arresting police officer on the stand.

The PO was a young man who looked like a Harvard student with neat appearance, studious looking eye glasses, and as better suit than I was wearing.

The defendant was a mortgage company official and was well dressed and intelligent.

The PO tesified that he observed the defendant's vehicle going through the square in downtown Concord, and it began to weave back and forth over the yellow line.

The PO stopped the vehicle and asked for license and registration.

The PO asked if the defendant had any imbibed alcoholic beverages, to which question the defendant replied in the affirmative.

The PO then asked, "How long have you been drinking?" The defendant replied,"Since I was f*****g born."

Needless to say, after the laughter subsided in court room, all that I could do was to put my guy on the stand and went over his job, education and background even prior to conviction. Prosecution did not even bother to cross-examine.

Of course the PO gave the usual litany that he observed the defendant and saw that his eyes were glassy and bloodshot, his speech was slurred and he had a strong odor of alcohol on his breath and in his opinion the defendant was drunk.

At that time a first time offender would have to pay a fine of $100.00 and a surcharge of $35.00.

The judge noted that there was sufficient evidence to find the defendant guilty but stated that once in a while a bit of levity in the court room was not bad and that he was impressed with the defendant's frankness. He therefore waived the $35.00 surcharge.

Yes, the defendant lost his license for 90 days and had to enroll in the usual education seminars.


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