Monday Morning Poll

Monday, February 2nd, 2009

Note that the question is what you think will happen, not what you think should happen.

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49 Responses to “Monday Morning Poll”

  1. #1 |  claude | 

    Can they instruct the jury on lesser charges in Va. or is it going to be a cap murder or nothing?

  2. #2 |  MacK | 

    I had to vote on the guilty to drug charges, because you know drugs are bad.

  3. #3 |  MacK | 

    I truly do believe he acted in self defense, but a cop died so there must be some payment by Ryan.
    The jury will be able to sleep nights if they vote guilty on drugs, and self defense on shooting.

  4. #4 |  Mike | 

    I had the same question as Claude, if lesser charges are available I would have gone for a conviction on that. However I don’t think lesser charges should be an option here so maybe they aren’t.

    Either he knew they were police and it is capital murder, or he didn’t and it is self-defense. I don’t think there are any other situations.

    Still if a lesser charge were offered I wouldn’t be surprised to see a jury take it.

  5. #5 |  TomMil | 

    i think they are going to hang on the capitol murder charge

  6. #6 |  TomMil | 

    I don’t mean hang him I mean they will become unable to reach a verdict.

  7. #7 |  MikeS | 

    I’m extremely pessimistic about this. Juries are really unreasonable when there’s a cop on the deck.

  8. #8 |  Mike T | 

    If Broccoletti runs wild with the behavior of the prosecution, the jury very well may end up so seething and upset at the state that they nullify. Not VERY likely, but Frederick is a sympathetic defendant because if you take away the occasional pot use, he’s as much of an upstanding citizen as any member of the jury.

  9. #9 |  freedomfan | 

    I don’t know how to estimate the jury’s need for some token of abstract justice. If it were me, I would demand that the prosecutor be disbarred and face criminal charges just as a start to seeing Frederick get justice.

    With regard to the charges against Frederick, the murder charge is an utter joke and a jury that can’t find reasonable doubt on that charge can be declared brain dead.

    The drug charges may be abstract for the jury, since there is some admission of use, some might take that and his gardening prowess to imply RF is a grower with intent to distribute. Once again, the fact that the police were at no point able to provide solid evidence that any sale had ever occurred, or even that RF ever even grew any substantial quantity of marijuana should provide reasonable doubt on that charge, too. To me, the critical factor is whether the jury understands that the criterion is “reasonable doubt”, not whether they kinda sorta think he might have been selling.

  10. #10 |  Dave Krueger | 

    I think they may very well hang him on the murder charge. People are still inclined to see the cops as the good guys and drug users as bad guys. It’s drummed into them every day like an institutionalized state sponsored form of jury conditioning (tampering). All the prosecutor has to do is how up for the trial and not completely blow it.

    Things are changing. People are starting to distrust cops a little less because of the many videos of police misbehavior they see on the web, but we have a long way to go before juries will consistently stand up for defendants victimized by sociopathic and incompetent cops and prosecutors who are increasingly becoming the norm.

    Even then, you can be sure that laws and procedures will change to keep the state on top. In the end, I suspect juries will be legislated into rubber stamping state prosecutions.

    If Ryan wins, it will be the exception, not the rule.

  11. #11 |  gg | 

    when is the jury going to deleberate on this? how much time is left in the trial?

  12. #12 |  Carl Drega | 

    “because if you take away the occasional pot use, he’s as much of an upstanding citizen as any member of the jury.”

    Actually, if you include the pot use he is as much of an upstanding citizen as anyone.

  13. #13 |  Joel Rosenberg | 

    Given the conditions of contest: guilty on capital murder; could go either way on the drug stuff.

    If they can come back with lesser shouldn’t-have-killed-the-guy conviction, though, I predict that they will.

  14. #14 |  thomasblair | 

    This whole trial really makes me nauseous. For all the innocent lives destroyed by the drug war, there are very few cases that get to trial in this manner and even fewer where the facts are this clear. I’m rarely one to attach too much importance to a single event, but this case may well be the tipping point in favor of even greater state crackdowns on drug use should he be found guilty of capital murder for defending himself against an intruder in his home.

  15. #15 |  Andrew | 

    I wish that I could be more optimistic, but I voted guilty on all charges.

    If VA has lesser included offenses, I could see a manslaughter conviction rather than a murder conviction. But given what Ebert’s voir dire questionnaire entailed, I can’t see anyone on the jury having enough intelligence to see the facts instead of the rhetoric and vote not guilty.

    I really hope I’m wrong though.

  16. #16 |  Ganja Blue | 

    I think the defense should have hired a courtroom expert marijuana grower, someone from a medical marijuana state who’s a registered caregiver who could testify as to how much marijuana you need to cultivate to run a profitable commercial operation. Given the equipment that was found, I think an experienced grower could have determined how much bud he was actually producing. AFAIK, the only marijuana expert testified for the defense and the testimony was laughable to anyone who’s read more than one issue of High Times.

    Does anyone know if the garage/shed was climate controlled? If it wasn’t, he couldn’t have been growing during the hottest and coldest months.

  17. #17 |  jet | 

    I was thinking about this last night, and I believe it will all come down to jury instructions and that question of “reasonable doubt”. Jailhouse snitches aside, it seems to me the only case that the prosecution has attempted to make is that RF *should* have known that it was the police. They haven’t, to my mind, made the case at all that he DID know. If the jurors really understand the concept of reasonble doubt, then I think he’ll be acquitted of all charges. I don’t have much faith in that outcome, though, and believe he’ll probably be found guilty of all charges.

  18. #18 |  ktc2 | 

    Yeah, a hung jury option is needed. I think at this point that is a likely outcome in the event there is at least one thinking person on the jury.

  19. #19 |  David | 

    I hate thinking this way, but I think that despite the poor case against him and the prosecution’s obvious chicanery, the poor guy’s going to be convicted on all charges. I’ll be pleasantly surprised if he isn’t.

  20. #20 |  Boyd Durkin | 

    Let us now compile the complete list of people walking the streets free today that have killed a cop (for whatever reason)…

    I’m guessing it isn’t a long list. Even if RF gets off here, my guess is the system will hound him relentlessly for decades with the many tools they have at their disposal.

  21. #21 |  ktc2 | 

    Boyd,

    Or he’ll become the victim of some “accident”.

  22. #22 |  t. reed | 

    Does anybody know about the jury demographic in this case? Male/female. Black/white. Age?

  23. #23 |  Aresen | 

    What I want to happen is “Not Guilty” on all charges.

    But I have to agree with MikeS @ #7: With a cop dead, the jury will want to blame someone. (I do not know the makeup of the jury, but you can bet that anyone with any strong analytical ability was excluded.) Which is why I had to vote for “Guilty on all Charges”. It’s not what I want, but it’s what I think and dread will happen.

  24. #24 |  Don Tabor | 

    Having attended the trial, I have to say this jury would make good poker players. They are listening intently, and not revealing too much. I have noticed something of an eye-roll on occasion when Prosecutor Willet speaks, but he has been so over-the-top since the beginning, I can’t imagine anyone taking him seriously.

    Assuming the judge’s instructions allow lesser charges, my guess will be simple possession on the drug charge, and a 50/50 chance between acquittal and manslaughter on the shooting.

    I think you would have had to select a jury from a “Jerry Springer” audience to get a conviction on capital murder.

    But what do I know, I thought the Steelers would cover the spread.

  25. #25 |  John Jenkins | 

    If any credible evidence in the record supports a proffered instruction on a lesser-included offense, failure to give the instruction is reversible error.

    Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992).

    A claim of self defense does note preclude an instruction on a lesser-included offense if the evidence supports an instruction on the lesser-included offense. Bennett v. Commonwealth, 236 Va. 448, 374 S.E.2d 303, (1988).

    I cannot find any Va., pattern jury instructions, so I don’t know whether Va. courts instruct on reasonable doubt. The irony here being that I once wrote an article on reasonable doubt instructions and I can’t remember what the Va. rule is. Some states permit, but do not require, a reasonable doubt instruction (I recall this being the majority rule), other states require a reasonable doubt instruction, and still others forbid any reasonable doubt instruction, to the point that giving one is reversible error (I believe only Oklahoma and Kentucky follow this rule).

    @ Don Tabor (#24):

    But what do I know, I thought the Steelers would cover the spread.

    I thought the Steelers would cover the spread and that the spread was way too small (I was thinking 13 1/2). That said, the Cardinals’ losing is perverse back door evidence of the existence of God for me, since it spared me 1,234,502 stories about God from Kurt Warner being interviewed by Deion Sanders, which can only be the result of the actions of an omnipotent, beneficent being.

  26. #26 |  Bob | 

    I have no idea. I want the jury to nullify. To say “Come on! You call that a case?”

    But… there are almost certainly those on the jury who saw only “Dead Cop” and there is no question that it was Frederick who pulled the trigger.

    Which may leave hung jury, or the lone standout is mentally tortured by the rest until they agree to “Git that cop killer”.

    There’s no way to know at this juncture.

    However, I think a chilling result can happen if guilty on the murder charge is found… Angry cops who ALREADY thought it was their god-given right to bust into your house will now be gunning for the “Second and fourth amendment types”.

  27. #27 |  Bob | 

    Back to the poll… I’m surprised so many people selected “Guilty on the drug charges”.

    I would expect that those are the only charges he’s pretty much guaranteed to get “Not guilty”. Not a shred of evidence and the prosecution didn’t even try to show proof of him selling drugs.

    If anything, the holdouts for not guilty on murder will agree to drop the drug charges just so it looks like they’re not total sellouts of their convictions. (And then regret it later, of course.).

  28. #28 |  Dave Krueger | 

    Most of the voters in this poll don’t have the benefit of having attended the trial, so it’s difficult for us to speculate how the prosecution’s case is coming across in terms of tone and believability to someone who’s only exposure to the case has been in the courtroom. I hope we are all pleasantly surprised and the jury turns out to be better than we’re giving them credit for.

  29. #29 |  John Jenkins | 

    @ Bob (#27): My understanding is that the charge is possession with intent to manufacture, and not a distribution charge. On those charges, since the police did find a small amount of marijuana and growing equipment, I would expect the jury to convict on that charge. For the most part, that’s because the elements of drug charges are generally trivial to prove. Possession and amount is usually all that’s required (to the point that, at least in the local D.A.’s office, the least capable trial lawyers are shunted off to the narcotics division).

  30. #30 |  Cynical | 

    Yet another show trial in the… U.S.s.A.

    He’ll be guilty on all charges following proper jury “instruction”…while it might take a day or so for peer pressure and the judge to mentally rubber hose any dissenters who might have slipped into the deliberations, but the process of herding cattle is very scientific these days.

  31. #31 |  InFrequently Asked Questions | 

    Kerry Dougherty Is Beneath Contempt…

    Really? Kerry? Fat jokes? I’ll come back later to your despicable column from the weekend.

    Right now, I’d like to turn your attention back to 26 February, 2008, when you lectured the blogosphere to wait until we heard the facts. By “facts”, you mu…

  32. #32 |  Rick Caldwell | 

    I think many of you underestimate just how poorly the prosecution has done here. Willett really pissed people off. The video and audio were devastating to the “blind rage” thing. Broccoletti has made nearly all of the prosecution’s witnesses look stupid, dishonest, or both.

    I wouldn’t be surprised to find one badgelicker on the jury who thinks dead cop+trigger puller=convict, but that would hang the jury. I don’t think there’s any chance of a conviction, if the jury saw the same trial I did.

  33. #33 |  John Jenkins | 

    @ Cynical (#30): We get it, you think everything that any government does is illegitimate and that we’re all livestock for not rebelling. What I don’t get is why you think repeating it incessantly is worthwhile.

    Incidentally, there is no reason for the judge to talk to the jury during deliberations unless the jury has a question that the judge is permitted to answer (and then both the prosecution and the defense are part of the response process).

    For time out of mind, deliberations have been sacrosanct, so there is no real likelihood of any kind of rubber hose treatment. A dissenter cannot be called to account for not voting to convict (except in cases of misconduct, but that’s not what you’re talking about).

    @ Rick Caldwell (#31): The prosecution’s pathetic showing is exactly why I expect a conviction on the drug charges (because an orangutan could get a drug conviction) and acquittal on the murder (because it appears clear that the cops, the CI’s and the D.A. don’t have a clue what happened, and that makes it look like they’re railroading Frederick to cover their own asses, which is something I’ve never seen a jury take kindly to). For me, the real interesting question is whether the evidence supports a manslaughter instruction and whether, if you’re the defense, you ask for it. The defense is entitled to go for broke and not ask for the lesser-included offense, but that’s asking for a compromise verdict.

  34. #34 |  David | 

    The question is whether they’ll care about things we would find important (motive, intent, the right to defend oneself, bad police policies, burglars as informants, “professional” witnesses, etc.) or whether they’ll focus on the fact that Shivers is dead and Frederick pulled the trigger.

    I’ve met too many people who would only care about the latter to think that Frederick would be found “Not guilty”. Especially if they can be convinced that by growing marijuana, Frederick was committing a felony, and that the death of officer in commission of a felony is capital murder.

  35. #35 |  SusanK | 

    #31 (Rick):
    If you are right about the prosecution pissing off the jury, that’s enough for them to at least be deadlocked. The one thing that sticks with me is their claim in opening that Ryan was “stoned out of his mind.” Unless they can come up with some clever way to deal with that in closing, a jury will see that as being lied to and doubt all evidence provided by the state.
    The cardinal rule of openings? NEVER promise anything you aren’t 100% sure you can prove. Losing credibility in front of strangers is even more devastating than any other mistake you can make in a trial.

  36. #36 |  MacGregory | 

    This case only demonstrates to me that law enforcement has become more about business than justice. Feed the media the propaganda they need too keep the public happy and insure our tax dollars are well spent. Even if Ryan is found to be innocent, you can bet your sweet ass the MSM won’t cover it. By the same token, if guilty, he will be the subject of talking heads MSM talk shows for a very long time.

  37. #37 |  claude | 

    http://hamptonroads.com/2009/02/closing-prosecutor-calls-frederick-jekyll-and-hyde

    “The jury will begin deliberating tomorrow morning. When it does, it will have six options regarding charges in the death of Chesapeake police Detective Jarrod Shivers – acquittal or a conviction on capital murder, first-degree murder, second-degree murder, voluntary manslaughter or involuntary manslaughter. That decision was made as the two sides hammered out what instructions will be given to the jury.”

  38. #38 |  claude | 

    Does anyone have the Va. statutes on voluntary and involuntary manslaughter? TYIA

  39. #39 |  chance | 

    According to the Virginia Pilot, the jury has been instructed it can find any of the following: acquittal or a conviction on capital murder, first-degree murder, second-degree murder, voluntary manslaughter or involuntary manslaughter.

    Had it only been capital murder, I would have said likely acquittal. With those other options, I just don’t know.

  40. #40 |  claude | 

    We need a new poll. :-|

  41. #41 |  AJP | 

    In this case, I think its good news that they opted for the lesser included charges. I think it virtually eliminates the chance they will convict him on a more serious charge; if he gets convicted of manslaughter, that’s the time to up the public pressure for a light sentence, and/or go to Governor Kaine and seek pardon/commutation.

  42. #42 |  claude | 

    “if he gets convicted of manslaughter, that’s the time to up the public pressure for a light sentence, and/or go to Governor Kaine and seek pardon/commutation.”

    I think both involuntary and voluntary manslaughter are class 5 felonies in Va., which, according to what i have found, carries a 1 to 10 year sentence. Aggravated manslaughter can be up to 20 years.

  43. #43 |  John Jenkins | 

    Capital Murder: Va. Stat., § 18.2-31

    Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction, except as provided in § 18.2-31, is murder of the first degree, punishable as a Class 2 felony.

    All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years.

    Va. Stat., § 18.2-32.

    There are no statutory general definitions of voluntary and involuntary manslaughter that I can find. I assume they are defined by case law

  44. #44 |  claude | 

    “go to Governor Kaine and seek pardon/commutation.”

    I think we can forget about that ever happening.

  45. #45 |  claude | 

    “There are no statutory general definitions of voluntary and involuntary manslaughter that I can find. I assume they are defined by case law”

    Yeah, thats why i asked here. I found plenty of “how they are punished” but no definition.

  46. #46 |  John Jenkins | 

    Voluntary manslaughter is an intentional killing committed in the heat of passion upon reasonable provocation. See Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).

    “[T]he crime of common law involuntary manslaughter has two elements: 1) the accidental killing of a person, contrary to the intention of the parties; and 2) the death occurs in the defendant’s prosecution of an unlawful but not felonious act, or in the defendant’s improper performance of a lawful act.” Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992).

  47. #47 |  claude | 

    Ok, thanks john. Voluntary manslaughter is out. Involuntary manslaughter could very well be the verdict, but i would have to stretch to get there:

    1) the accidental killing of a person, contrary to the intention of the parties; and
    2) the death occurs in the defendant’s improper performance of a lawful act.”

    This one is possible.

  48. #48 |  supercat | 

    With a cop dead, the jury will want to blame someone. (I do not know the makeup of the jury, but you can bet that anyone with any strong analytical ability was excluded.)

    I have no idea what the defense attorney is going to argue in his closing, but I would suggest that he might point out that he wouldn’t be arguing RF’s innocence in court if the police had parked cars so the lights would flash in through RF’s windows and used their megaphone before breaking through RF’s door. Had those cops done those things, the attorney wouldn’t be arguing that he was innocent of killing a cop, because the cop would still be alive.

    By their own admission, the police tried to prevent anyone in RF’s house from knowing they were cops. They succeeded. While it’s unclear who exactly was responsible for the cops’ unfortunate decision to conceal their identity from the target of their search, one thing is clear: it wasn’t RF.

    RF believed, quite reasonably, that thieves who didn’t mind alerting him to their presence would very likely try to incapacitate and/or kill him. He wasn’t seeking to protect his property–he was seeking to protect himself. Maybe an attacker would ‘only’ seek to tie up RF, but there would be no way RF could possibly know that until it would be too late to prevent a homicidal attacker from killing him.

    RF knew that there were people at the door who were acting like robbers. To suggest that he shouldn’t have fired would be to imply that people should refrain from shooting robbers on the off chance those robbers might be police who are merely acting like robbers. Such a philosophy would allow robbers to attack people with impunity.

    People who act like robbers should expect to get quite legitimately shot. People who don’t want to get shot shouldn’t act like robbers. Cops have a responsibility to avoid acting like robbers. Rf should not be punished because some cops failed to do so.

  49. #49 |  Aresen | 

    #48 supercat

    People who act like robbers should expect to get quite legitimately shot. People who don’t want to get shot shouldn’t act like robbers. Cops have a responsibility to avoid acting like robbers. Rf should not be punished because some cops failed to do so.

    Agreed.

    However, there’s a whole lot of “We’re the cops, so that makes it right” out there that you have to get around first.

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