TheAgitator.com
The Ryan Frederick Trial: Jurors Deliberate
Tuesday, February 3rd, 2009Yesterday, both sides in the Ryan Frederick trial made their closing arguments. This morning, the jury will begin their deliberations.
Ryan Frederick is the 28-year-old Chesapeake, Virginia man facing murder charges for killing a police officer during a drug raid (see this wiki for more on Frederick’s case). Prior coverage of his trial here.
If you’ve been following the case, I’d encourage you read coverage from the Virginian-Pilot, and from the local Tidewater Liberty blog.
Some wrap-up odds and ends from the last few days of the trial:
• Last week, the defense called seven of Frederick’s neighbors, one of whom was outside the night of the raid. All said they heard no police announcement, though neighbors did testify about hearing the battering ram.
• There’s more significance to the neighbors’ testimony than merely whether or not Frederick should have heard an announcement, though that’s obviously important. The state made Frederick out to be a big-time drug dealer. Police informant Steven Wright said he bought marijuana from Frederick dozens of times over just a few months. That’s dozens of drug deals from just one guy. Yet the police affidavit notes that surveillance on Frederick’s home showed no unusual activity. And Frederick’s neighbors—people who you’d think would want a hardened, drug-dealing, cop-killing neighbor out of their community—have not only defended him in the media, they’ve testified in his defense at his trial.
• The Virginian-Pilot’s John Hopkins has done a splendid job covering this case. I’ve rarely seen a local reporter cover a botched raid so well. Hopkins refused to take police statements about the raid at face value. He did his own reporting, and uncovered some significant flaws in the case. At the start of the trial, Special Prosecutor Paul Ebert put Hopkins on his witness list, which effectively barred Hopkins from the courtroom, which meant he could no longer report on the case. But Ebert never called Hopkins to testify. Sneaky way to get a good reporter off your butt.
• The person who could shed the most light on the truth in this case never testified. That would be Renaldo Turnbull, the informant/burglar that Hopkins and I interviewed. That he didn’t testify isn’t surprising. He wouldn’t have been helpful to either side. The state would have to deal with his revelations to Hopkins and I that the police were encouraging their informants to illegally break into homes to collect probable cause. Once the judge ruled before the trial that the search warrant for Frederick’s home was valid, Frederikc’s attorneys no longer had much of a reason to bring up Turnbull’s allegations. They would have had to deal with a guy who’s still facing a host of his own criminal charges, and is at the mercy of the state. There’s also obviously a huge risk to the defense in going after the integrity of the police, particularly the integrity of the cop your client admits to shooting.
If there’s ever an outside investigation of the issues that have surfaced in this case (and there really should be), Turnbull ought to be the first person investigators speak to, and the first to whom they grant immunity.
• Frederick’s biggest problem is that in the interviews he gave with police shortly after the raid, he misled them about growing marijuana. I could be mistaken, but from what I can tell, he didn’t out and out lie—he said there were no marijuana plants in his home at the time fo the raid, and there weren’t. But he neglected to say he had plants before the break-in by the police informant three nights earlier.
It’s not difficult to believe that Frederick both legitimately feared for his life the night of the raid (fearing, perhaps, that informant Steven Wright and friends had come to harm him), and realized that if he admitted in those interrogations to both killing a cop and growing marijuana, his days were numbered.
Of course, Frederick wasn’t obligated to talk to the police at all that night. And he certainly wasn’t obligated to implicate himself. But that he did talk but then wasn’t forthcoming about growing marijuana will almost certainly hurt his credibility with the jury.
• Oddly, at the same time, the recordings of those police interrogations could also save Frederick. They clearly show a frightened, nervous, confused man, who weeps and vomits when he contemplates that he’s just taken another life. They don’t depict the enraged, calculating cop killer prosecutors tried to make Frederick out to be.
• Yesterday, the judge decided to allow the jury to consider lesser charges for Frederick, including first and second degree murder, and voluntary and involuntary manslaughter. The prosecution consented to adding the lesser charges.
On the one hand, this would seem to show that the prosecution isn’t all that confident in its case (which, if true, would be one of the few signs of intelligence they’ve shown in two weeks). On the other hand, allowing for lesser charges also gives the jury the option of holding Frederick culpable for (a) growing marijuana, and (b) killing a law enforcement officer who had come to his home because of that marijuana, while at the same time giving them the sense that they’re punishing the police for poor procedure, and the prosecutors for their insulting performance in court.
If I had to make a prediction, I’d say the jury convicts on both the drug and gun charge, and convicts Frederick of some sort of manslaughter. The state didn’t prove distribution (their only evidence that Frederick grew the marijuana for anything other than personal use was testimony from their lying informant), but I could see the jury wanting to punish Frederick for lying to the police. A murder charge in Virginia requires proof of malice, and the only evidence the state offered of malice, again, came from informants with criminal records who were shown at trial to be repeated liars. Frederick’s taped interrogations, on the other hand, clearly show remorse.
Whatever the jury decides, this is an ugly tragedy all around. And entirely preventable. Amazing how paternalism can so quickly manifest itself as bloodshed. The last couple of weeks have embodied so many of the insidious elements of the drug war, from the home invasions to the informant tips and shoddy police investigations to the jailhouse snitch testimony and the chilling, horrifying feeling that with one life ended and another effectively ruined, we’ve been through all of this before. And it’s just a matter of time before we go through it all again.
Thanks for the wrap up Radley, and for your work on this throughout the past year. It’s been an emotional roller coaster following the events from the beginning…I can’t imagine what it must have been like for Ryan. I just hope the jury can see through the state’s bullshit.
I think that “lesser charges” can sometimes become a compromise for juries who can’t agree on guilt rather than a reflection of the circumstances of the “crime”.
Personally, if I were on the jury, I would hold out for acquittal even if it resulted in a hung jury. But then, there’s no way I’d have survived voir dere, so me and my kind don’t get on juries.
Thanks Radley for all your work on this case.
I actually find myself nervous for Ryan right now. I really hope that the jury is able to see past the rhetoric to the truth and vote not guilty.
Poor fellow. I hope he comes out of this alive, if not actually “ok”.
I can’t get this case off my mind, and ever since listening to/watching the police interviews of Ryan, I’ve even had trouble falling asleep at night.
We will see what the jury decides, but at this point I’m almost disappointed that they have lesser charges available. If this were “capital murder or nothing” decision, I would have some hope that he could be acquitted of those charges (assuming the jurors have any ounce of decency that the prosecutors lack). It would take a heartless and/or brianless person to look at Ryan Frederick and think ‘Now there’s a cop killer.’
That being said, I don’t have much confidence in juries or our “justice” system at this point, and it’s quite possible that they could convict on capital murder. Something like that might just send me over the edge.
Ryan, my heart goes out to you. I hope you will get to know how many of us are behind you 110%.
Radley, thank you so much for fighting this fight and for helping to get the word out.
If you think the anticipation is hell for us, think about what is going through the mind of this kid. I just pray that God gives him comfort and that he is exonerated…if nothing else, it would be a good time for SOMEONE on that jury to know about nullification.
Should have read ‘that he is aquitted’…(brain not tapping on all eight cylinders yet.)
The prosecution does not have to consent to lesser-included offenses. If there is evidence to support the lesser-included offenses, then the defendant is entitled to the instruction whether the prosecution likes it or not.
The case was released to the jury at 9:20 this morning. Mr. Broccoletti told me that he expects the jury to be out for at least a day. I took a chance to come home and get a couple things taken care of, having been sitting in court the last two weeks…
Will be going back down there after noon…
Yesterday, the Virginian-Pilot’s “what do you think?” poll had the majority of the people who responded thinking Acquittal – hope we’re right…
If they remember the words “reasonable doubt”, there should be no problem on the charges related to killing the cop.
I’m crossposting my comment from Tidewater Liberty, the quote is from their account of the trial:
“He [prosecutor] also said that Mr. Frederick is as much of an expert (about marijuana) as Det. Meinhart. Meinhart says 1 plant produces 1 pound of salable marijuana. 1 pound is 16 ounces, and at $400.00 per ounce is $6400.00 times 10 plants is $64000.00.”
Show me the money! If RF was running a commercial operation for the better part of a year, where is all the money?
From a previous comment thread [@ Tidwater Liberty] we determined that if RF was growing 10 plants at a time, 50% of those would be female. The “expert” detective’s used estimations from plants grown outdoors, not in a hydroponic garden. The detective did not factor that the plants were not mature (there was no smokeable bud). The “expert” also did not account for the fact that half of all marijuana plants are male and have to be discarded. The “expert” did not factor in that it takes at least four months to produce marijuana from an indoor garden.
(10 (plants) / 2 (sex)) * 8 oz / 8 weeks (grow cycle) = 1 oz per week
I’ve been more than generous to the prosecution in this estimation. I did not account for drying time, plant disease, or other factors that would lead to a crop loss. I’m not an experienced grower. The numbers I pulled from several different grow sites and their related publications. http://www.hightimes.com http://www.cannabisculture.com http://icmag.com If the guy’s garden was producing, at best, one ounce per week is this really a commercial garden? I think defense attorneys need to start hiring their own marijuana experts.
P.S. I work cheap.
I’m confident that RF will be acquitted. The judge’s instructions to the jury were quite clear about what must be proven in order to convict on each charge, and that if that burden of proof is not met, they must acquit. Reviewing the requirements for each charge, no person, even minimally intelligent can fit the evidence into any of those boxes, due to one or more outstanding, incontrovertible fact.
In addition to that, Doc Tabor, during breaks asked the courtroom observers what they thought would happen. He said every single person he spoke to, even the ardent badgelickers, thought RF would be acquitted.
I’m rarely this confident that a jury will go this far in opposition to the state, but I really do believe he will be cleared.
I hope Mr. Frederick knows how many of us have been reading about him and just feel sick over this whole thing. And of course I’ll be hoping all day that he is acquitted.
Adding the availability of the extra charges really muddies the waters at this point. That’s unfortunate. I think he had a much better chance of acquittal when he was only facing murder one because he was so obviously not guilty of that.
This just seems a desperation measure, “A cop is dead! Convict him of something dammit!” by a losing prosecution.
Not being an expert of Virginia law (or any law) I can’t comment on involuntary manslaughter as it applies in this case.
One concern of mine is that in our “justice” system if a man is found guilty on ANY count that he is facing in a trial he can and often is sentenced for ALL the counts including the ones he is found not guilty of. This of course is one of the more egrigious evils in our “justice” system. It concerns me that he could be found guilty of some petty crime just to have the judge legally though completely immorally sentence him to the max for all.
At the very least, if one truly committed badgelicker (who got through the defense side of voir dire) is on the jury, it will be hung. But there is no way 12 people can agree on any of these charges, as defined in Judge Arrington’s instructions.
Then lie and pretend to be stupid.
@ ktc2 (#14):
This is flat wrong. A criminal defendant may only be sentenced in accord with the charges on which such defendant is convicted. Your statement is so off base, I am not even sure what you might mean by it.
John Jenkins,
United States v. Watts
Link to the poll Wilburn was talking about.
If you want to vote in the poll, you’ll find it in the left sidebar of the local category page.
keeping my fingers crossed for Ryan and his family! Hell, this is for all of us…
You’re both right in your own way. Yes, a defendant in that case can only be sentenced in accord with the charges on which they are convicted. However, the judge can take into account the charges on which he is acquitted in order to determine sentencing — even if that sentence exceeds what otherwise would have been suggested under sentencing guidelines (i.e. a first-time offender convicted of X crime would get Y time in jail, but a first-time offender convicted of X crime but acquitted of T crime may get Z time in jail, or about as much time as a multiple-time offender might have gotten in the same circumstances).
Here’s the implications of the case as described on a law site:
United States v. Watts
Question
May sentencing courts consider the conduct of a defendant’s underlying charges of which she or he has been acquitted?
Conclusion
Yes. In a 7-2 per curiam opinion, the Court held that a jury’s verdict of acquittal does not prevent a sentencing court from considering a defendant’s conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence. Justices Antonin Scalia and Stephen G. Breyer concurred. Dissenting, Justice John Paul Stevens argued that the additional offense should have been required to have been proved beyond a reasonable doubt for sentencing purposes, where a defendant’s sentence was lengthened. Justice Anthony M. Kennedy, also dissenting, expressed the view that the cases should have been set for full briefing and consideration.
After Apprendi/Ring/Blakely, I have grave doubts that Watts is still good law (though SCOTUS did not take Hurn and settle the issue), and it doesn’t say what you think it says.
A judge has always been permitted to consider prior bad acts when sentencing, as long as the defendant is sentenced within the range of punishment for the crime of which he was convicted.
Take O.J. Simpson as an example. Once he was convicted of robbery and kidnapping, the sentencing judge was free to consider
O.J.’s prior bad acts in the deaths of Nicole Simpson and Ron Goldman (for which O.J. was found liable), but the judge could only sentence O.J. in the range for kidnapping and robbery.
Watts stands for exactly that proposition. If criminal conduct is shown by a preponderance of the evidence, then that conduct may be considered in sentencing the defendant for crimes he is convicted of, even if the defendant is acquitted. Judges have always been entitled to consider the defendant’s conduct when sentencing. See 18 U.S.C. § 3661.
Now, it may well be that 18 U.S.C. § 3661 should be read as limited by Apprendi/Ring/Blakely, but no defendant is ever sentenced for crimes of which he is acquitted. It just doesn’t happen.
While you are technically correct. This is lawyer-speak nonsense.
They do more time than they would have otherwise, sometimes even exceeding guidelines, just because the judge feels they are guilty of the crimes of which they were acquitted.
So while not “sentenced for” those crimes they are serving time for them.
Well, I am a lawyer, and we are talking about legal concepts, so I can’t help it.
I am curious what you think the limit should be on conduct considered in sentencing. If the judge is to consider NO conduct other than the crime charged and proved, then ranges of punishment don’t make a lot of sense. Each crime should have one number attached to it.
I think you’re also considering how sentencing can go the other way. A judge can consider a defendant’s lack of priors and general good character in granting a lower sentence (perhaps probation). Should that be permitted?
I don’t claim to be a legal or moral scholar; however, I do believe that when you have been found “not guilty” by a jury of your peers for a particular crime than as far as the legal system is concerned you didn’t do it and shouldn’t be serving any time for it.
Sentencing ranges certianly have their place and prior convictions, acceptance of responsibility for ones actions, remorse, etc. (or lack thereof) should be considered. But if you are found “not guilty” by the jury than that crime or act should be off the table.
I am also bothered by this seemingly late-stage (if I am reading correctly) instruction to consider lesser included charges. It seems to me that the prosecution should have to specify that at the outset. Of course, the defense attorney may well be aware of the possibility and prepare the case for it. But, if he doesn’t, this is saying that the judge can, at the last minute, add charges that may be much easier to convict on, even though the defense has focused on establishing reasonable doubt on charges where reasonable doubt is easier to establish.
This isn’t a great analogy, but imagine if I have been charged with breaking a promise to hand-carry an adult Kodiak grizzly up a set of stairs and my defense is that I never made that promise. It would be pretty easy for a jury to reasonably doubt that I promised to do something that is obviously impossible for me to do. But, if the judge decides that they can also convict me for breaking a promise to carry a koala up a set of stairs, then obviously I might have to change my whole defense strategy.
Okay, I need caffeine, but I maintain that all the charges the jury are to consider should be known with certainty in time for the defense to prepare for them.
I’m confused. Did the defense ask the judge to allow lesser charges?
I’m not a lawyer, but I can see a reason for the ranges. The sentencing ranges still make sense in terms of allowing variation to accommodate variations in the egregiousness in the commission of the crime for which the defendant was actually convicted.
Considering prior convictions in sentencing may make sense, since those are established fact as far as the court is concerned (and a good reason for defendants not to plead to crimes they haven’t committed). In sentencing, considering crimes for which the prosecution has tried the defendant and explicitly failed to convict him seems very unjust.
Oops. How ridiculous is it to misspell the word ‘brainless’ (#5)? I am so embarrassed. Carry on.
*hangs head in shame*
When more cops get wacked playing Rambo in people’s livingrooms, there will be change. Now, I don’t know if the change will be to stop playing Rambo…or up the ante and call in airstrikes instead.
Fritz…there is no shame in misspelling a word. I am a stickler for spelling but am no scholar in grammar or spelling.
If misspelling WORDZ was a crime, I’d be on deathrow.
I am no typist either.
Well hell, I guess I need to figure out WHAT I AM!
Geesh, waiting on this verdict is gut wrenching.
Boyd (#31),
What I fear is that an increase in these incidents will result in further restrictions to our rights under the 2nd amendment, not any relief in the 4th amendment area. What a sad state.
The jury has asked to hear the audiotape of the first interview (in the police car) as well as to see diagrams of Ryan’s house, and the battering ram the police used as well as Ryan’s front door itself.
I hate to read too much into jury requests, but it seems that the verdict is going to rely upon whether they believe Ryan when he says that he didn’t know it was the cops… from the type of evidence they asked for (physical evidence, not trial transcripts) I’m hoping it’s a good thing.
Fritz,
Yup they will have to “disarm us for our own protection”.
In the video, you can’t make out the reenactor depicting Shivers from the inside camera. When the forensic scientist, Grover Davis is running the string from where they believe RF was standing when he shot to the Shivers stand-in, Davis even says he can’t see him, so they turn some sort of light onto the stand-in, so Davis can run the string.
If I had to guess, I’d bet the jurors are trying to piece together exactly what RF saw from his perspective.
The request for evidence is bad news for RF. He’s getting convicted on one of the manslaughter/homicide charges. There are people on the jury who want to convict on a homicide charge and others are trying to ‘compromise’ and talk them down to manslaughter.
My sad prediction is they find him guilty of voluntary manslaughter and throw in the distribution and gun use as ‘lesser’ charges out of sympathy for the widow.
Boyd and Fritz,
The logical conclusion to the continual escalation of the “scorched earth” anti drug policies is, literally, scorched earth. Eventually some drug warrior zealot will guilt someone into thinking about the children while giving the drug warrior access to our nuclear launch codes, and then the war on drugs will finally be won. And the last thing that goes through John Walters’ head will be “hmm, maybe there was a better way to go about thi….”
Court recessed today at 5:00, and the jury was sent home. They are to return at 9:00 a.m. tomorrow and continue with deliberations.
At around 11:00 this morning they (jury) asked for the door, the battering ram, a cd (audio – probably of the 1st interview), a viewer and a diagram of the house…
Yes. In a 7-2 per curiam opinion, the Court held that a jury’s verdict of acquittal does not prevent a sentencing court from considering a defendant’s conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.
Wow–Stevens went out on a limb to get one right.
For the right of trial by jury to really be preserved, the jury must be responsible for determining all significant matters of fact. Unless a jury makes a catalog of what evidence they find credible and not credible, there’s no fair way a judge can determine whether an allegation has been proven by a preponderance of credible evidence.
Indeed, I’ll go further and state that juries must be aware of the maximum sentences defendants can face and/or impose limits themselves. Even if one regards the job of a jury as merely being one of finding innocent or guilt, more severe punishments require more substantial showings of criminal intent than lesser ones.
Suppose someone is charged with obstructing an emergency vehicle because–through his own negligence but not intention–his vehicle broke down in a place where it blocked an ambulance. If a finding of guilt would carry a $20 fine and no other consequence, a reasonable jury should probably convict. If a finding of guilt would mean a 50-year prison term with no possibility of parole, a reasonable jury must acquit. If a jury had the authority to convict with the condition that the defendant face no consequence beyond a particular fine, that would be fair, but otherwise there would be no way a jury could know whether to convict or not without knowing what punishment the defendant would face.
People must consider the entity responsible for this, criminal pusher of adulterated misbranded bright leaf cigarettes, Virginia:
http://freedomofmedicineanddiet.blogspot.com/2009/02/what-obama-could-say-about-criminal.html
I think it is becoming apparent what the crest looks like for the drug war. One side is legalization (FFFFUUUUULLLLL legalization). The other side, which is most likely, is further erosion of rights (from a complicit majority of citizens) and an increased use of force against the citizens.
America is getting worse at an accelerating rate.