Refusal to Consent to Search Does Not Give Cop Reasonable Suspicion to Pat Down

 

In the case In Re H.H. (2009), the California Court of Appeal reversed the trial courts (Alameda County) ruling on a motion to suppress.  The basic facts were that H.H., a minor, was riding his bicycle at night without a head lamp.  A police officer stopped him and asked  the minor to remove the backpack he was wearing.  After doing so, the minor said, “I am not on probation”, which caused the officer to be concerned that the minor might be armed and dangerous.  The minor then told the officer that he did not consent to any search of the back pack or himself.  This refusal, coupled with the prior remark, raised “red flags” in the officer mind, so he conducted a pat down search of the minor for weapons.  Lo and behold, the officer found a revolver in the minor’s jacket.

In court, the minor filed a motion to suppress based upon the pat down search that was expressly not consented to by the minor.  The trial court found that the officer had reasonable suspicion to search the minor even after the refusal to give consent, saying, “the officer‟s specific articulated reasons for conducting the pat-down search under the circumstances were reasonable[.]” 

The Court of Appeal reversed, thank goodness.  They actually read the litany of cases, starting with Terry v. Ohio (1968) 392 U.S. 1, that held that an officer may conduct a pat down search only when a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger.  

The issue in this case was whether the minor’s refusal to consent to search, or to put it in a positive context, whether the minor’s invocation of his Fourth Amendment right to be free from warrantless search and seizure, is sufficient reasonable suspicion for a reasonable prudent person to believe he was armed and dangerous.  Like I said above, thank goodness the court ruled that invoking your Fourth Amendment right does not give an officer a right to conduct a pat down search.  Otherwise, there would be no Fourth Amendment, which I know would make some prosecutors and some judges very happy (until they or there family was involved).  

Some of you might be saying, “well, the cop was right, the minor did have a gun; his suspicions proved correct”.  Well, the Constitution is not about looking at the end result and then justifying.  No, our Constitutional principles look to what is known at the time.  To do differently would be disastrous, which unfortunately is creeping, well maybe more accurately, jogging, into our case law presently.  This Court of Appeal, applied the law and the facts correctly, even though they knew the end result.  That is what has to be done in every case, in order for us to have and live in a just, free, democratic society.

So I applaud the Court of Appeal in this case.  However, if they went the other way, we would be in big trouble.

Chauncey Bailey Murder Investigation: Bad Decision or Cover-up?

The murder of Oakland Tribune journalist Chauncey Bailey was a tragedy.  What is almost just as tragic is the police investigation of the suspects.  Oakland Police Lt. Derwin Longmire, has taken his share of the blame for the shody, to put it mildly, investigation in this case.  Yusef Bey IV, the leader of the Your Black Muslim Bakery, was not initially charged in the killing of Mr. Bailey, but last month he and another Bakery worker, Antoine Mackey, were indicted by a grand jury in that slaying and in two others murders.  Mr. Bey and Det. Longmire apparently had a long standing friendship, which some say got in the way of Longmire’s investigation of the murder.  Accusations have been made against Longmire that he neglected information and that he refused to followup on leads that may have implicated Bey IV in the murder of Mr. Bailey.  The only person initially charged in the shooting death of Mr. Bailey was Devaughndre Broussard, who also worked at the Bakery for Mr. Bey.  Mr. Broussard apparently confessed to the killing of Mr. Bailey, just after a controversial meeting was arranged by Det. Longmire.  This meeting occurred while in police custody, between Mr. Bey and Mr. Broussard.  Their conversation was not videotaped or recorded, even though it could easily have been done.  After the meeting, Mr. Broussard confessed to the killing.  Shortly after, Mr. Broussard denied killing Mr. Bailey and claims he only confessed because he was pressured into confessing by Mr. Bey.  

Det. Longmire has taken a lot of heat for his handling of the investigation.  In my view, it is very difficult for people unfamiliar with how the police must interact with the citizens in this 21st century world we live in, to understand how police must work within the confines of the law.  Whether Det. Longmire’s relationship with Bey was as a mentor, as some suggest, or was purely for “work” purposes, only Longmire knows.  However, either way, one cannot point blame at Longmire for pursuing this relationship.  That is how police work; that is how crimes get solved.  People talk; information is gold to the police, or “leads” as they might term them.  

The big mistake Longmire made, and OPD even more so, was to allow him to be the lead investigator in the murder of Mr. Bailey.  Det. Longmire should have recognized the “appearance of impropriety” and asked to be taken off the case, and his superiors should have recognized it as well, and not assigned him to the case.

We will never know how things would have been different had another investigator interrogated Bey, Broussard and Mackey in that early stage of the investigation.  Would that other investigator have handled the case differently?  Probably so.  Would there be more information for prosecutors to work with?  Maybe, maybe not.

We as the public cannot have it both ways.  We cannot say we want our police to be active in the community and be active with the youth, but when things go wrong in the community, not to use those relationships and ties to solve crimes.  Sure, from what we know now, Longmire should have stepped down from the investigation, but at that time, the public was clamoring for the case to be solved.  What better person to “solve” the case than the investigator with the closest ties to the foremost suspect?

With the recent grand jury indictments, I am sure we have not heard the last about this case, nor with Det. Longmire’s actions in it.  What I am sure of, is that the State of California, through the Alameda County District Attorney’s Office, will do everything it can to prosecute those responsible for the murder of Mr. Bailey.  I am also sure that those charged in his murder, Bey IV, Broussard, and Mackey, will need very competent and qualified legal counsel to insure they receive a fair trial in what will undoubtedly be a highly publicized trial.

Jerry Brown: Opportunistic Fool

The Bay Area, California, and the United States, are still in shock over the shooting deaths of four Oakland Police Officers last week.  Their deaths were tragic, and as is usual in these cases, completely a selfish act on behalf of the killer.

The killer in this case, Lovelle Mixon, was wanted for a parole violation when he was stopped by the Oakland P.D.  This parole violation, was the reason given by all in the media, as the reason Mixon executed two officers and killed two more while hiding in a closet.

Mr. Mixon was previously convicted of assault with a deadly weapon in an attempted carjacking in San Francisco.  He served six years in prison as a result of that conviction.  Mr. Mixon failed to report to his parole officer in February, which resulted in a warrant for his arrest.  As a result, the maximum Mr. Mixon would have been facing was 1 year in prison, but more than likely, he would not have done more than 6 months for failing to report.  Mr. Mixon had previously violated parole in 2008 and was sent back to prison.  During that time, Mixon was under investigation for a murder in Oakland, that is still unsolved.  Mixon was the only suspect in that case.  

So based upon this information, our Attorney General, the infamous Jerry Brown, gets on the soap box and rails on about how the parole system seems to be broken and that is underlying reason for these officer’s horrible deaths.  

Does Mr. Brown take us all for fools?  The Attorney General of the State of California, former Mayor of Oakland, former U.S. Presidential nominee a dozen or so times, and former Governor of the State of California, has the audacity and gall to blame the parole system for the murder of these officers???  Just for making that statement, Mr. Brown should be forced out of office, let alone all the other reasons why he should not be in office.

While the parole system in the State of California is atrocious, to blame these murders on that problem is like blaming the gun manufacturers for shooting a victim.  Oh, wait, bad example.  It’s like President Obama and the rest of the elected officials in the House of Representatives and Senate, blaming “Wall Street” for the financial crisis.  Of course “Wall Street” is partly to blame for the economic crisis, but President Obama and Congress have a lot to answer for as well.  Same as Jerry Brown.  Mr. Brown has zero responsibility in the brutal murders of these fine officers.  However, his “Johnny Come Lately” routine to the ills of the parole system is laughable, if it wasn’t so serious.

To make matters even worse for Mr. Brown, when he blamed the parole system for these murders, he was referring to the outstanding warrant mentioned above, for the reason Mr. Mixon probably killed the officers; so he wouldn’t have to go back to prison for 6 months?  A few days later we learned, that Mr. Mixon’s DNA came up involving the forcible rape of a 12 year old.  That crime occurred sometime in February 2009.  The DNA positive “hit” came to the police’s attention two days before the murder, although it is still unknown at this time if any of the officers were aware of that rape investigation.

So now instead of Mr. Mixon wanting to escape from 6 months in prison for a parole violation, it is highly likely, and rather probable that he was afraid of going back to prison for a very long time for the rape of a 12 year old.  His actions, make much more “sense” if that is possible, knowing what Mr. Mixon knew of his situation that fateful day.

So what are we to make of Jerry Brown?  Was he just using the opportunity to comment on the brokenness of the States parole system?  Or did he once again stick his foot, firmly in mouth?

My analysis is Yes and Yes.

The fact that parolee’s commit more crime percentage wise than non-parolees is nothing new.  The fact that parolee’s have a high percentage of revocations, is also not new.  The fact that a large segment of parolees are unaccounted for, is also not surprising.  These problems have been with us for years, but the politicians, like Jerry Brown, don’t seem to want to do anything about them, accept make it harder for a convicted felon, who has served time in prison, to make an honest living once released back to the community.  Jerry Brown did not have to use the murder of four courageous police officers to make the point that the parole system is broken.  Shame on him for diverting attention away from the culprit in this case, Mr. Mixon.

Mr. Brown, by commenting the way he did, and not waiting for more details to emerge as to the potential motivation of Mr. Mixon, also looks like a complete fool.  Mr. Mixon did not shoot the officers because of his minor parole problems.  It is highly likely that he shot the officers, execution style and then barricade style, because he did not want to go back to prison for probably the rest of his life, as a convicted child rapist and/or as a potential murderer.  By jumping at the opportunity to score political points, Jerry Brown got egg on his face when the full situation arose as to motivations of Mr. Mixon.

So, in my opinion, Jerry Brown is an opportunistic fool.  But let’s hope that this fool will push forward to revamp the broken parole system here in California.  If he doesn’t, he will not just be an opportunistic fool, he will be a coward and a failure.

Blago: Done in by the Hypocrites

Rod R. Blagojevich, the now former Governor of Illinois, got a good taste of what most defendant’s feel like in the criminal justice system in America today:  screwed.  Yes, Mr. Blagojevich “did” all these horrible things in office, or so we are led to believe by a very ambitious U.S. Attorney in Chicago, and by those upright State Senators in Illinois, who never, ever, ever, raised funds for their campaign the way Mr. Blagojevich did.  Sure.

The biggest problem I have with this whole situation is that Mr. Blagojevich is only “accused” of committing a crime, (see my previous post on Plaxico Burress) and most people have written him off as another criminal politician, in the likes of Richard Nixon and Bill Clinton.  Sure, a Governor can be impeached in Illinois without having committed any criminal acts, but the only reason these spineless, hypocritical Senators from Illinois brought the impeachment process up was because of the pending, I say pending, criminal charges.  If he was so bad, why did they wait 6 years to impeach him?  That is the question those Senators will have to face in the coming months, especially if Mr. Blagojevich is successful in his criminal trial in Federal Court, which from what has been brought out in the press, is very likely.

Believe me, I am no Blagojevich supporter by any means.  He was a career Chicago political hack; of course he did things the old way; “you scratch my back, I will scratch yours”.  But the good people of Illinois, for whatever reason, elected him into office twice.  He should at least been given the opportunity to continue on as Governor until the results of his criminal case were final.  I mean, the new Senator from Illinois, Roland Burris, the man Blagojevich tabbed to fill President Obama’s vacant seat,  what happens with him now?  The answer of course is nothing.  Blagojevich made, by all accounts, a competent choice to fill the vacant seat, the seat which caused the impeachment furor.  

It was obvious to anyone, other than the power hungry, ravenous wolves, in the State Senate, that Blagojevich could continue on as Governor without much of a problem.  It was probably to the benefit of the people of the state of Illinois, since Blagojevich knew he was under a microscope, everything he did had to be crystal clear, without the hint of impropriety.  He probably could have done a lot of good work in the coming months for the people of Illinois under those conditions.   However, those “do gooders” in the Senate had to step in to fix the mess.  Somehow I believe they are walking into a bigger mess.

But once again, the wonderful free press in this country, has already convicted Blagojevich of these “crimes”.  For anyone to think otherwise, the press will tell you, is uninformed and doesn’t know all the facts.  Exactly!   Neither does the media.  That is what a criminal trial is all about.  To have all the facts presented, in the proper context, with lawyers on both sides arguing their case to a fair and impartial jury.

When will the media just report the known facts of a story, and stop the speculating?  I guess that train has already left the station years ago, but we can only hope.

Feces Smearing/Throwing Defendant Gets What He Wanted

It seems a criminal defendant in San Diego has had enough with his public defender.  The defendant wanted him fired, through the use of what is called a Mardsen Motion/Hearing.  The judge denied the defendant’s request to appoint another lawyer to represent him, so the defendant took matter’s into his own hands.  

According to the news reports, the defendant smeared feces on his lawyer and then threw some feces at the jury who had been empaneled to hear his case concerning a home invasion burglary in 2007.  The defendant smuggled in the feces in a bag that he had hidden on his person.  The defendant was in custody at the time.

So to get the record straight, the man rubbed excrement on his lawyer, the person who is defending him from going to prison for a long time, and then throws excrement at the jury, the same jury that will/would decide if this man is guilty or innocent of the charges.  This defendant is either so full of …himself, or he just had a really bad day and he had enough … stress for the day.  The other possibility is that he just has … scrambled eggs for a brain, which seems the most likely scenario.

The judge was forced to declare a mistrial, obviously, but in the second most controversial move of the day, (nothing can top the defendant’s actions) the judge increased the defendant’s bail from $250k to $1 million.  Judges are supposed to set bail at an amount that will protect the public and insure the defendant appears in court.  Judges are not allowed to set bail in amount as a punishment to the defendant, only to protect the public and to insure the appearance.  Apparently, this defendant chose not to bail out at the $250k amount previously set for the last two years, probably because he did not have the money.  There was no reason for the judge to increase the bail in that case; the defendant was not going anywhere.  It is apparent that the judge increased the bail because of what the defendant did in his courtroom, as a form of punishment.  

Now what the defendant did, is obviously gross, disgusting, inhuman, etc. etc.  It is also illegal, and I am sure he will be facing new charges on the feces smearing and throwing incident, where a new bail amount would have to be set anyway.  It just seems the judge acted on his emotion, rather than on law, in this particular situation, which, probably is understandable under the circumstances.  

The ironic part of the story is that the defendant, who was looking for a new attorney , and the judge denied his request, will get what he wanted:  a brand new attorney, whom I assume, will keep his distance.

Plaxico Burress: Guilty Unless Proved Innocent?

There has a lot that has already been said about the incident involving the New York Giants wide receiver Plaxico Burress allegedly shooting himself in the leg in the early morning hours of November 29th.  Most of what has been stated in the press and over the airwaves has been from people quoting others who have some involvement in the case, but who refuse to be named for one reason or another.  This type of reporting is very common with these “high profile” types of incidents.

But what is very exasperating to me, is that time and time again, the “talking heads” in the media take this information they have received from unnamed sources or worse, they take information second or third hand, and report it as fact.  

For instance, in this case, it was reported all weekend and even as late as today, December 2nd, that one of Burress’s teammates, Derrick Ward, was present with him at the nightclub where the incident occurred.  In fact, Derrick Ward was not present at the nightclub.  Derrick Ward, in order the “clear his name”, had to make an appearance on ESPN television this morning in order to set the record straight that he was not at the nightclub.

Why does the media think they have to make determinations of guilt or innocence, before all the facts are known?  Why cannot the media just report the facts, not unsubstantiated rumors?  I know they must sell newspapers and advertising, and there is a rush to get the “scoop”, but at what cost?

Even the mayor of New York, Michael Bloomberg, got into the action yesterday, by declaring that Plaxico Burress should go to the “slammer” for carrying a gun in New York without a license.  Really?  Does ‘da mayor’ know something the rest of us don’t know, such as, when was Plaxico Burress convicted in court?  

Wouldn’t it have been better for the mayor to say something like, “We take illegal gun possession laws very seriously in New York.  If Mr. Burress is found guilty of such a crime, he should, in my opinion, serve time in the “slammer””?

Since this story has a cross over from the “Plaxico Burress” the star, to “Plaxico Burress” the football player, there maybe more of the jumping to conclusions and shoddy reporting, since sportswriters and sportscasters are thrust to cover a legal story in a sports context.  

Further, whether Plaxico plays another down in the NFL, is completely different from whether Plaxico will go to the “slammer” or whether he will be convicted or not.  The NFL does not have the “proof beyond a reasonable doubt” standard before they suspend a player for off the field conduct.  

But when the media speaks about Plaxico carrying a gun, shooting himself, and being guilty of illegal gun possession, they are speaking way out of line.  As far as I know, not one witness has spoken publicly about what happened that early morning in the nightclub in Manhattan.  As we have seen before and in this case, taking as fact reports from unnamed sources and the like, unfairly tries and convicts a person before all the facts are known.

What sometimes happens is in these kinds of cases, they do go to trial where all the facts are laid out before a jury.  And sometimes, a jury will decide the state has not proven their case beyond a reasonable doubt.  Usually, the public will be in an outrage because “they” had already convicted this person months, years ago of this crime.  But what the public didn’t get, was all the facts to the case, like the jury had, because the media did not give them all the facts.  The media did not give them all the facts because as defense lawyers, we don’t try cases in the media; we try them in courts of law.  And unless the media was paying attention during the trial, which usually they do not, the media did not report what all the facts were.

Unfortunately, there is no way to really cure this disease of Guilty Unless Proven Innocent.  What the media can do to help cure this problems is when reporting these kinds of stories, to remind the viewers that not all the facts are known at this time.  The media should stop editorializing these kinds of stories with comments such as, “Plaxico Burress reportedly shot himself in the leg.  If true, he faces prison time.  It doesn’t look good for Plaxico”.  If the media reported just what it knew rather adding to the story, it could help reduce the disease.

The public can help too.  We all know someone who has been through the legal system before.  We may know someone who was even acquitted of charges.  We must continue to be vigilant and give people the benefit of the legal system by not judging someone on information we hear from the media, because we all know, what we hear or  read is not always accurate or truthful.

Whatever happened in those early morning hours to Plaxico Burress will become known soon.  What we, the public, know now, we have learned through the media, and that is not the complete story.  Even the police, the vaunted NYPD, don’t know all the facts about this case yet and may never know until the trial.  In an adversarial system that we have, sometimes that happens.

The job of the media is to present facts to the public.  Their job is not to judge someone.  Maybe I am living in a dream world, but I don’t think that is too much to ask from our media.

Follow up: Contra Costa Prosecutor: System Not Fair Now That I Am the Accused

To follow-up on the previous post, Mr. Gessert, a Deputy District Attorney in Contra Costa County, ran for election for the top job on three prior occasions, most recently in 2002.  In 2002, as part of his “get tough on crime” campaign, Mr. Gessert proposed a policy of “no plea bargaining” on any serious violent felonies.  Further, Mr. Gessert floated the idea that he was “not opposed” to making rape a capital crime.

http://legalpad.typepad.com/my_weblog/2008/11/contra-costa-prosecutor-charged-in-rape-case.html

What is interesting about this is that Mr. Gessert is facing charges that are all serious violent felonies, thus, if he were the District Attorney, his policy would forbid his lawyer from plea bargaining for him.  Further, as he is charged with rape, Mr. Gessert personally feels that this crime that he is accused of committing, should be penalized by death.

As I pointed out in the previous post, that Mr. Gessert is now “disillusioned” with the system he worked in for over 20 years, seems to me to be disingenuous at best, and laughably hypocritical at worst.  I wonder if Mr. Gessert’s views have changed now that he has been charged with crimes he recently thought did not deserve to be plea bargained or he thought were so serious that it warranted the death penalty?  

Now that Mr. Gessert is a “defendant” rather than representing the “People of the State of California”, I can only hope that he, rather than be disillusioned with the system, will come to understand how terribly unfair and draconian the system has become over the last twenty years due to “tough on crime” politicians (like himself), and a public seeking a pound of flesh, rather than justice.

Contra Costa Prosecutor: System Not Fair Now That I Am the Accused

Contra Costa Deputy District Attorney Michael Gressert has been charged with several sex crimes and faces a potential term of life in prison if convicted.  Gressert is on a paid administrative leave since his arrest in October, but before that he was the head Deputy of the sex crimes unit.

Although the victim is listed as “Jane Doe”, it has been reported that the alleged victim is a female Deputy District Attorney in the same office.  The date of the incidents are identified as having occurred in May 2008.  It has been reported that the police were not contacted until a week before Mr. Gessert was arrested in October.  The State’s Attorney General, prosecuting the case because of the conflict of interest, did not comment about the case.

What is most interesting to me about this case, is Mr. Gessert’s comment outside court.  He reportedly said to reporters, “The truth will come out,” Gressett said outside the courthouse. “I do feel sorry – this is painful for my family, my loved ones, my colleagues. I am standing now in disillusionment of the system. … I hate this route we’re taking, but it’s probably the only way to have public vindication.”  http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/22/BAHJ149JCO.DTL&type=newsbayarea

I wonder why Mr. Gessert’s is disillusioned with the system?  Is this the same system that he has prosecuted many people, some undoubtedly guilty I am sure, but some also who believed that they were innocent and could not understand why they were being prosecuted?  Is Mr. Gessert that egotistical to believe that he is above the system he dedicated his working life to?

Mr. Gessert prosecuted many cases similar to his own case throughout his career.  Was he ever “disillusioned” with system at those times?  I think not. Apparently for Mr. Gessert, the system where he is in charge works perfectly fine.  When the same system works against him, the system is broken.

Make no mistake, Mr. Gessert, as all defendant’s, is innocent unless proven otherwise.  It seems that this case will be destined for a jury to sort out the truthfulness or lack thereof, of the accusations.  

I think all prosecutors should take a lesson from Mr. Gessert and ask themselves this seminal question before filing a case and if the answer is no, well, of course, not file.  The question is:  Are the facts sufficient to support a conviction, even if I were the accused?

Terror Suspects Released

A Federal Judge ordered the release of five “terror” suspects from the Guantanamo prison camps where they were being held.  http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/11/20/national/w091007S05.DTL

Although most of the facts about this case are unknown, since it is “classified” information, it seems to me that finally a judge, a Bush appointee, had the courage to finally do the right thing when it comes to these “enemy combatants”.  The fact that these five guys apparently had no ties to any terror organization, and were not accused of doing any terrorist acts, begs the question as to why these men were held in Cuba for seven years.

They were picked up in Bosnia in October 2001 for allegedly discussing bombing the U.S. embassy in Sarejevo.  The Government recently “backed down” on those allegations, but I guess to further justify their imprisonment, stated that they were imprisoned before they joined a terrorist network as a proactive measure against terror, especially so soon after 9-11.  

So why is that it took seven years for someone in authority to order these guys released?  This type of treatment to people who may or may not be enemies of the United States is terribly wrong and an embarrassment to our country.  If the Government can prove that they acted against the United States, do so.  The quicker the better.  If the Government cannot prove it, they must be released.

The judge basically begged the Government not to file an appeal, due to the fact that the men would have to stay in prison for at least another two years until the appeal process ran its course.  Further, how much more money is the Government going to spend prosecuting these five, really dangerous guys?  

It is good to know that these five men will be released.  Seven years in prison is a long time for just fitting the mold of a terrorist.

Electronic Witnesses

Whether you want to believe it or not, we are in the age of “1984″ as described by George Orwell in his prescient novel of the same title.  Electronic surveillance is everywhere; from the ATM machine, to cell phone triangulation, to red lights, to toll plazas, and to public transportation.  More and more, this information is working its way in the criminal court system.  Usually, this information is brought in by the prosecution to prove the defendant’s whereabouts.  As a criminal defense lawyer, the hair on the back of my neck stand straight up and I lie awake at night, wondering how to combat this evidence and/or prove that it is somehow in error and cannot be relied upon.

Well I am glad to see that some very bright lawyers and their investigator in New York have seen to it that the “Electronic Witness” will be testifying for the defendant. 

http://www.nytimes.com/2008/11/19/nyregion/19metrocard.html?th&emc=th

The New York Times article describes a case where two brothers are being prosecuted in Federal court for the murder of a confidential government witness.  One of the brothers told the police that he didn’t commit the crime because he was nowhere near the scene.  He told them to check his “metro card” ( a card used to ride the subways and transit buses in New York).  The police confiscated the card, but either did nothing with it, or worse, tried to bury it.

The defendant’s attorney and investigator was able to obtain the card from the police, which I am sure was no small task, and was able to use the information on the card to determine where and when it was used. As it turned out, the card was used 5 miles from where the murder took place at the same time of the murder.  Further, the card checked out exactly to what the defendant told the police he went that evening.

As a result, the Federal prosecutors agreed to release the one defendant on bond.  The other brother was also released on bond.  The case is still pending, and it will be interesting to see how this case turns out.

The key to this evidence for the defense is to show that the metro card was always in the possession of the defendant.  If there are any holes in this defense, it is just that:  that the card may have been 5 miles from the murder scene at the time of the murder, but that doesn’t mean the defendant was, which is very similar to arguments criminal defense attorney’s make when presented with inculpatory electronic witnesses.

We will be seeing a lot more of electronic witnesses in the future, as technology advances and the public demands for more security.  The bigger and looming question is however, can these electronic witnesses stand up to cross-examination?  Only time will tell.