Do prosecutors really believe law enforcement are angelic?

I frequently end up getting retained to represent criminal defendants in cases involving law enforcement officers as “victims” – usually in counties other than the one in which I reside.  Without fail, the prosecutor assigned to the case will be gung-ho moving forward with the prosecution, even if the evidence is slim to non-existent  (most usually consisting solely of the verbal testimony of the officer).  Mind you, I have encountered a prosecutor who had the gumption to call a spade a spade and dismiss the case – but that was an exception to the rule.

The other day I was speaking with an assistant prosecutor whom I had never met before, regarding a similar case.  The facts were extremely disputed, not just by the defendant and the “victim,” but by the eyewitnesses.  Basically there was a fistfight involving a civilian and an off-duty officer.  When other officers responded, do you think they approached the situation fairly?  Of course not, they arrested the civilian without taking any eyewitness statements – based solely on the statement of the off-duty officer – and of course added in a “contempt of cop” charge (obstruction) as the cherry-on-top, for allegedly not withdrawing from the fight quickly enough.  Since they were not present when the fight began, they have no idea who was the aggressor, and who was engaging in self defense.

When I tried to explain this disparity to the prosecutor, suggesting that the charges be dismissed, he looked at me like I was crazy, replying something to the effect of “our officers are perfect creatures molded in the image of Christ.”  

Do law enforcement officers transcend humanity when they get sworn in?  Are they somehow immune from human flaws?  Has no law enforcement officer on the face of the earth, throughout recorded history, ever told a lie?  Ever protected one of their own? Ever trumped up charges against someone they didn’t like?  Was the term “blue wall” created by some UFO researcher digging through the National Archives?  Of course not.  There are thousands of provable, documented incidences, and the fact that a prosecutor can’t have an open mind about such things is just plain scary.

I suppose this is why our founding fathers guaranteed us the right to be tried by a jury – unless of course your in West Virginia and are charged with a misdemeanor and you fail to request one within twenty days….

 - John H. Bryan, West Virginia Attorney.

It’s time for “zero tolerance” for brain dead government employees…

In Colorado, a graduating high school senior with a 3.5 grade point average, who was a member of the young marines’ drill team, was suspended for having mock rifles made of wood and duct tape in her car on school property.  She is being told by the school that she may be expelled due to Colorado’s “zero tolerance” law regarding guns – or even likenesses or images of guns – on school property.

Political correctness and incompetent government teachers and employees are doing their best to turn our citizens into a bunch of wimps, who can’t even handle seeing a fake gun spun by a burgeoning marine  - a remarkable young woman who is getting ready to serve her country in order to give those idiot government employees the safety and security that they take for advantage everyday.  

General George Patton must be turning over in his grave.  The generation we are producing now is not capable of living up to the same set of challenges as his generation.  To prove my point: General Patton gave this speech to the Third Army in 1944 – to men who grew up as regular Americans, but who were now faced with the seemingly impossible task of facing the brutal Nazi war machine:

• Men, this stuff that some sources sling around about America wanting out of this war, not wanting to fight, is a crock of bullshit. Americans love to fight, traditionally. All real Americans love the sting and clash of battle. You are here today for three reasons. First, because you are here to defend your homes and your loved ones. Second, you are here for your own self respect, because you would not want to be anywhere else. Third, you are here because you are real men and all real men like to fight.

• Americans love a winner. Americans will not tolerate a loser. Americans despise cowards. Americans play to win all of the time. I wouldn’t give a hoot in hell for a man who lost and laughed. That’s why Americans have never lost nor will ever lose a war; for the very idea of losing is hateful to an American.

• Every man is scared in his first battle. If he says he’s not, he’s a liar. Some men are cowards but they fight the same as the brave men or they get the hell slammed out of them watching men fight who are just as scared as they are. The real hero is the man who fights even though he is scared. Some men get over their fright in a minute under fire. For some, it takes an hour. For some, it takes days. But a real man will never let his fear of death overpower his honor, his sense of duty to his country, and his innate manhood. Battle is the most magnificent competition in which a human being can indulge. It brings out all that is best and it removes all that is base.

• Remember that the enemy is just as frightened as you are, and probably more so. They are not supermen.

• All through your Army careers, you men have bitched about what you call “chicken shit drilling”. That, like everything else in this Army, has a definite purpose. That purpose is alertness. Alertness must be bred into every soldier. I don’t give a fuck for a man who’s not always on his toes. You men are veterans or you wouldn’t be here. You are ready for what’s to come.

• There are four hundred neatly marked graves somewhere in Sicily. All because one man went to sleep on the job. But they are German graves, because we caught the bastard asleep before they did.

• An Army is a team. It lives, sleeps, eats, and fights as a team. This individual heroic stuff is pure horse shit. The bilious bastards who write that kind of stuff for the Saturday Evening Post don’t know any more about real fighting under fire than they know about fucking!

• We have the finest food, the finest equipment, the best spirit, and the best men in the world. Why, by God, I actually pity those poor sons-of-bitches we’re going up against. By God, I do.

• My men don’t surrender. I don’t want to hear of any soldier under my command being captured unless he has been hit. Even if you are hit, you can still fight back.
• I believe in the old and sound rule that an ounce of sweat will save a gallon of blood.

• All of the real heroes are not storybook combat fighters, either. Every single man in this Army plays a vital role. Don’t ever let up. Don’t ever think that your job is unimportant. Every man has a job to do and he must do it. Every man is a vital link in the great chain.

• Each man must not think only of himself, but also of his buddy fighting beside him. We don’t want yellow cowards in this Army. They should be killed off like rats. If not, they will go home after this war and breed more cowards. The brave men will breed more brave men. Kill off the Goddamned cowards and we will have a nation of brave men.

• Don’t forget, you men don’t know that I’m here. No mention of that fact is to be made in any letters. The world is not supposed to know what the hell happened to me. I’m not supposed to be commanding this Army. I’m not even supposed to be here in England. Let the first bastards to find out be the Goddamned Germans. Some day I want to see them raise up on their piss-soaked hind legs and howl, “Jesus Christ, it’s the Goddamned Third Army again and that son-of-a-fucking-bitch Patton”.

• Sure, we want to go home. We want this war over with. The quickest way to get it over with is to go get the bastards who started it. The quicker they are whipped, the quicker we can go home. The shortest way home is through Berlin and Tokyo. And when we get to Berlin, I am personally going to shoot that paper hanging son-of-a-bitch Hitler. Just like I’d shoot a snake!

• When a man is lying in a shell hole, if he just stays there all day, a German will get to him eventually. The hell with that idea. The hell with taking it.   We’ll win this war, but we’ll win it only by fighting and by showing the Germans that we’ve got more guts than they have; or ever will have. We’re not going to just shoot the sons-of-bitches, we’re going to rip out their living Goddamned guts and use them to grease the treads of our tanks. We’re going to murder those lousy Hun cocksuckers by the bushel-fucking-basket. War is a bloody, killing business. You’ve got to spill their blood, or they will spill yours. Rip them up the belly. Shoot them in the guts. When shells are hitting all around you and you wipe the dirt off your face and realize that instead of dirt it’s the blood and guts of what once was your best friend beside you, you’ll know what to do!

• I don’t want to get any messages saying, “I am holding my position.” We are not holding a Goddamned thing. Let the Germans do that. We are advancing constantly and we are not interested in holding onto anything, except the enemy’s balls. We are going to twist his balls and kick the living shit out of him all of the time. Our basic plan of operation is to advance and to keep on advancing regardless of whether we have to go over, under, or through the enemy. We are going to go through him like crap through a goose; like shit through a tin horn!

• From time to time there will be some complaints that we are pushing our people too hard. I don’t give a good Goddamn about such complaints. I believe in the old and sound rule that an ounce of sweat will save a gallon of blood. The harder we push, the more Germans we will kill. The more Germans we kill, the fewer of our men will be killed. Pushing means fewer casualties. I want you all to remember that.

• There is one great thing that you men will all be able to say after this war is over and you are home once again. You may be thankful that twenty years from now when you are sitting by the fireplace with your grandson on your knee and he asks you what you did in the great World War II, you won’t have to cough, shift him to the other knee and say, “Well, your Granddaddy shoveled shit in Louisiana.” No, Sir, you can look him straight in the eye and say, “Son, your Granddaddy rode with the Great Third Army and a Son-of-a-Goddamned-Bitch named Georgie Patton!

We all know that this speech could not be given now.  The next generation tasked with rescuing good from evil will know more about “tolerance” than they will about courage, or about being tough.  And these “zero tolerance” laws, where great young kids are getting suspended and expelled for having a boy scout pocket knife in their car – or even for their younger brother leaving a toy gun in the backseat of their car – is at the root of the problem.  Or is it just a symptom of a much deeper problem?  So what if Johnny high school senior brought his shotgun in the trunk of his car or in his truck because he wanted to go duck hunting after school?  God only knows what our grandparents brought to school – and they turned out alright – and ended up saving the world from evil.  And the idea of suspending kids for having a mock-up wooden gun for spinning as part of the Young Marines?  What’s next?  I suppose that only time will tell.  What I do know, is that cases like this prove that bureaucrats and their mind-numbed robots are not equipped to prepare our children for the challenges that lie ahead. 

 - John H. Bryan, West Virginia Attorney.

Murder Case Appeal Denied

As was reported in the Register-Herald this morning, a 2nd degree murder conviction being appealed by myself and Tom White of Lewisburg was denied by the West Virginia Supreme Court of Appeals last week.  The vote was 4-1 – Menis Ketchum, a Justice having criminal defense experience, having voted to hear to hear the appeal.  One of the issues appealed was the admission of a “dying declaration,” which is an exception to the hearsay rule.  Justice Ketchum noted during the hearing that there has been a nationwide trend questioning the dying declaration exception, such as has long been the case in Alabama – See Hutcherson v. State, and indeed apparently even in India.  Exceptions the hearsay rule still have to hinge on the reliability of the statements.  If the dying person had a motive to lie, then the reliability of the statement should be questioned and it possibly should not be admitted.

In Hutcherson, the Court of Appeals of Alabama noted that “[t]hough a dying declaration is not presumed involuntary as is an extrajudicial confession, yet it must be treated with a jaundiced eye.  It is predicated on the assumption of death-bed freedom from vengefulness and mendacity.  The validity of this assumption would seem difficult of demonstration. Hutcherson v. State, 40 Ala.App. 77, 108 So.2d 177 (1958).

The Alabama court cites a prior Alabama case which gives this warning:

“There are many reasons why dying declarations should be received and weighed with great caution. First, They are necessarily wanting in that greatest test of the credibility of oral testimony, cross-examination. Second, The jury are without the opportunity of observing the temper and manner of the declarant.Third, Such testimony is generally given by relatives and friends of the deceased, who had watched by his bed-side, and bias in his favor is to be expected.Fourth, All narrations of the other men’s sayings should be scrutinized with care, because what men say is so liable to be misunderstood. This is shown in the fact that when two or more witnesses, no matter how respectable, attempt to repeat a conversation that was heard by each, very marked differences will frequently be observed in their several narratives. Fifth, Many persons, even in serious conversation, assert as facts those things of which they have only strong convictions, but have no knowledge derived from the senses. Well may we, in the language of the judges and text-writers, say that such evidence is received from necessity, and to prevent the escape of offenders who commit the awful crime of murder. * * *”

Shell v. State, 88 Ala. 14, 7 So.2d 41. 

Note: this is is no way represented as a comprehensive legal argument regarding dying declarations – only some off-the-beaten-path language that I encountered and felt was pertinent – probably only useful in attempts at encouraging a trial judge to second guess the reliability of a dying declaration sought to be admitted to a jury.  There are obviously better appellate arguments grounded in law.  This is not that.

Isn’t it frightening that you can be convicted of murder in West Virginia and not be able to appeal your case?  We need either an appeal as of right for certain criminal cases, or an intermediate court of appeals.  And we can afford it, we just need to cut out some of the entitlements that are handed out so generously in our state.

 - John H. Bryan, West Virginia Attorney.