TheAgitator.com
Broccoletti
Wednesday, February 4th, 2009I think Ryan Frederick’s attorney James Broccoletti has done his job very well to this point in the case. He’s been aided by an incompetent prosecution, and I wish he had taken the break-in allegations seriously sooner, but all in all, I’ve certainly seen worse in these cases. Broccoletti has an excellent reputation, and getting a manslaughter verdict on a case involving a dead cop and an admitted marijuana grower will only add to that.
That said, I just spoke with an attorney working on a similar case who was floored by this quote from Broccoletti:
“I think it’s a very fair and very rational verdict by the jury. I think it demonstrates that they applied reason, thought and common sense and sound judgment in what was a very emotional case.”
I think I agree (with the attorney I spoke with, not Broccoletti). There are a dozen or more solid reasons to appeal this verdict. I’m having a hard time understanding how Broccoletti’s statement that the verdict is “very fair and very rational” serves his client.
Could this be the case of he knows the jury will hear his remarks prior they give a sentancing reccomendation?
err, Accidentally hit submit before fixing my awful english.
I was theorizing that he made that statement knowing that the jury will be hearing it before they give a reccomendation on sentancing. Certainly you don’t want to call them idiots
Mike has highlighted the one ratinonale that might make sense of Broccoletti’s comment. Normally, in a non-capital context, the jury has no input on sentencing. Virginia is an exception to that general rule, and if Broccoletti reasonably believes his remarks might be accessed by the jury prior to their sentencing recommendation, it may explain his comment.
With that said, if the rationale was to say something that would flatter the jury, I would think he could have done it in a way that did not directly endorse the verdict as “fair” and “rational,” because these are the same buzzwords that are implicated in a sufficiency analysis on appeal.
For example, he could have said that he knows the jury has a very tough job to do, this is a very emotional case, he really appreciates the hard work that went into their deliberations, and he knows that Ryan wants to be a productive member of the community and he hopes Ryan will be given that chance.
“I was theorizing that he made that statement knowing that the jury will be hearing it before they give a recommendation on sentencing. Certainly you don’t want to call them idiots”
Right, this makes sense. The sentencing is next and Broccoletti’s attitude could convey to the jury.
Jury’s and Judges are highly unpredictable. Broccoletti’s gratitude reflects this.
Excellent point, Mike.
Notice that Broccoletti spoke only of the jury… not the prosecution or any procedural details… those things that an appeal would hinge on.
On top of which, Broccoletti’s respectful demeanor will also convey to the Judge.
They may not wish to appeal. Who knows. Knowing he won’t do more than 10 years ( though 10 too many), maybe they just want to take the punishment and move on.
I think #1 is right, the statement was made for political reasons, not legal.
Why wouldn’t he appeal? Jeopardy has attached on all the more serious charges. So even if he were retried, the worst charge he could face would be the one he was convicted of – voluntary manslaughter. Given that there are likely a number of solid appeal issues (sufficiency of the evidence, Shivers’ widow testifying, the admission of the “expert” marijuana testimony, prosecutorial misconduct with respect to the snitch testimony), what would he lose by pursuing an appeal?
Not to mention the fact that this verdict has troubling broader implications for self-defense – The new rule, under this verdict, would be what I will call the “Bunker Hill Rule” – You’re not allowed to shoot until you see the whites of their eyes. This seems to leave homeowners in a very precarious spot, because anytime there is a door between the homeowner and a violent intruder, the homeowner presumably has to wait until the door is breached and the intruder is in the same room, charging at them, prior to firing.
I would agree: Broccoletti could respect the jury’s verdict as fair and rational BASED ON what information they were allowed to use in reaching that verdict, but still appeal, based on misconduct by the prosecution or other grounds.
As a 2nd minor reason, I be saying the same thing in the hopes that it pisses off the prosecutor (because he probably isn’t happy about not getting murder conviction) so that he says something stupid/bad about the jury. That seems like a bit of a stretch though, but would explain why he didn’t say something similar to what #3 suggests.
I’m just a jailhouse lawyer, but it seems to me that the lawyer’s remarks have no impact on appeal. The appeal is for errors of law made by the trial court–the actions of the jury are not being appealed.
If the lawyer is trying to influence the jury in the next phase–it’s a good move. A better move would have been for the def lawyer to preface his remarks by saying “Despite the mean spirited things now being said by the prosecution, I think this jury did a good job.”
#9, from a legal perspective it makes no sense not to appeal, However I wouldn’t be at all surprised if RF instructs him not to appeal. While being technically right he probably feels some guilt about the killing and feels he somehow owes more time. I know someone who took an involuntary manslaughter conviction for hitting a pedestrian for those reasons. I would bet that people plead guilty for guilt reasons and not a fact of law somewhat often.
I’m not certain on the sentencing procedures in Virginia, but is it possible he might get a sentence substantially lower than 10 years? And he’ll get credit for time served already. So he might be shooting for that type of result where the amount of time left to serve is little to none.
Also, you never look towards an appeal until sentencing is done. One thing at a time. Make sure you get as good a sentence as possible, and then worry about filing an appeal. Can’t tell you how many clients I’ve had to tell this to; they want to do things that will hurt themselves at sentencing because they think they are going to win on appeal. Utterly foolish…
One other thing: if this is appealed, I’d doubt that the grounds for an appeal will be that no reasonable jury could have rendered the verdict that it did. (Those are almost impossible to win, and given what I’ve heard in this trial there is certainly sufficient evidence for a reasonable jury to have found him guilty–not that I would have found that way, but its certainly not an unreasonable and irrational verdict.) Thus, criticizing the JURY would serve no purpose even on an appeal. Any appeal would likely be based on the judge’s decisions regarding evidence or jury instructions, or on the prosecutor’s conduct.
So I don’t think that statement will have any relevance towards a later appeal, but could be beneficial when it comes to sentencing.
Also, I don’t recall whether defense counsel opposed the lesser included charges being sent to the jury or not. You would definitely want those, though, because you wouldn’t want the juries only options to be acquittal or guilty of murder. Then they are stuck because if they think hes guilty of something, then they’ll bring back a murder conviction. Its way too big of a gamble to take by not including the manslaughter instruction, to the point of I would consider it ineffective assistance of counsel to not have them submitted to the jury.
His comments to the press have no bearing on any appeal. They’re neither part of the record nor admissible.
Having said that, I wouldn’t have made those statements, or perhaps any statements right now.
Although he probably needs to be concerned that the jury might find out what he said, that’s easily dealt with by making no comment to the press to begin with.
Moreover, I assume that an even more critical audience right now is the trial judge, to whom any motion for a judgment notwithstanding the verdict, or for a new trial must be made. She is more likely to hear and remember these comments, given her proximity to them in space and time, than any appellate court. Based solely on what I’ve read, it seems to me that there are decent arguments for misconduct by the State and/or an absence of evidence on elements of the crime, and his first stop with those arguments will be the trial judge. Although she is unlikely to openly consider his press statements, it doesn’t help the atmosphere.
Broccoletti, although a lawyer, could simply be telling the truth, that his client is guilty and the punishment fair.
If an appeals court orders a new trial, the charge will be VM with a jury option for involuntary.
That is a whole new playing field. On the new playing field, RF is not “a dealer”. RF is a guy with a conviction for MJ pos. On the new playing field, RF’s lawyers CAN put the cops on trial. RF’s lawyers can get deeper into the break in story. RF’s lawyers can get more assertive about “self defense”. The jury instructions will be much more simple. The jury will look harder at the self defense issue. It would be a new playing field.
Meanwhile, off of the playing field, what will be happening to the guys who broke into RF’s garage?? Maybe they will, in the next year or so, change their story. Maybe they will find that the cops who promised to help them did not help them enough. Maybe they will get a little bitter. Maybe they will tell the truth.
If the state has a brain, the state will cut a deal with RF. From here, RF’s hand only gets better. The state’s hand only gets weaker.
The state also has to consider the cops. One of “their own” is dead. There is a widow and children. This is not the cops’ finest hour, and, if the facts that come out in the next trial put the police in an even less favorable light, the cops might find out that the widow gets pissed at the cops.
Ebert looks like a jerk. He does not want to stay in the game with this hand.
I didn’t read anything in Broccoletti’s statement that indicated there wasn’t a case for appeal. His remarks were complimentary to the jury, but not to the prosecution or to the overall process.
Nevertheless, IMO the comment to the press should have been more along the lines of:
I think we all need to calm down a bit.
The judge (and possibly the jury) will very likely hear everything that Broccoletti says, before sentencing, and the grounds for appeal are not limited by his statement.
Broccoletti is playing a long game here, not something to make everyone who is fired up happy, but rather doing what is in the best interests of his client. Part of that is being nice to the sentencing judge and jury, instead of throwing chum in the water.
Like I said earlier, the verdict is interesting, and if Broccoletti is any kind of appellate lawyer (he may not be, choosing to concentrate on trial work) he has a lot of stuff to work with, but he would do his client no favors by running off at the mouth in the press.
If this verdict is successfully appealed, then we may well see another trial in the same courthouse, in front of the same jury. How much would saying anything in the press help his client in that event? Broccoletti did exactly what he should have done, keeping his client’s interests above his own.
Before you people all go nuts, do we even know the context of the quote? What question was asked of him?
OGRE – I think you’ve made a good contribution to what is an interesting discussion. However, I wouldn’t be as quick to dismiss the strength of an appeal based on the ground that no reasonable jury could have rendered this verdict. You have to remember that Ryan’s defense was essentially that he acted in imperfect self-defense – i.e., he reasonably believed at the time that he was in danger from unlawful intruders trying to violently enter his house. In most states, presumably including Virginia, the prosecution has the burden of proving beyond a reasonable doubt that the defendant DID NOT act in self-defense. Obviously, if the State could prove that Ryan knew he was shooting at a police officer, it would have carried that burden. But the jury acquitted him on the capital murder charge, which means by definition that the State failed to prove found beyond a reasonable doubt that Ryan knew it was a police officer.
In the absence of a finding that Ryan believed he was firing on an officer, I think it is hard to come up with a defensible analytical path that could allow a juror to reach a guilty verdict on the voluntary manslaughter charge. The evidence at trial was undisputed concerning the fact that Ryan fired only after the “intruders” had broken down part of his front door and were attempting forcibly to enter. I’m not saying its a slam dunk, and I know this analysis is a bit oversimplified, but on these facts, I think Ryan has a strong argument that despite the charges given to the jury, it was really an “all or nothing” situation – If Ryan didn’t know he was firing on an officer, then he believed he was firing on an unlawful and violent intruder, and on the evidence presented in this case, no reasonable juror could find beyond a reasonable doubt that a person in Ryan’s situation committed manslaughter, as opposed to having fired in self-defense.
John Jenkins – Not to beat a dead horse, but how does it serve Ryan’s interest for Broccoletti to specifically characterize the guilty verdict as “rational”? If that concession were binding (which of course it is not), it would be very hard to reconcile with a challenge to the verdict based on the legal insufficiency of the evidence. As I’ve said above, I think Ryan has grounds for a sufficiency appeal, and I think Radley’s point is that Broccoletti could have said something that sounded just as nice and friendly toward the jury, without specifically saying that the verdict was “rational” and “fair.” For a proposed alternative statement, see my comment # 3 above.
Since the sentence ranges from 1 to 10 years and is determined, in large part, by the jury, pissing said jury off wont win any points for Frederick. Add to that, Broccoleti still has to work in that courthouse with the same people, judges, prosecutors, etc., on different cases, so a blacklist wouldn’t be in his interest. Plus saying that you respect the jury doesn’t mean you agree with them or that they did the right thing.
The jury called for 10 years. :-(
That should say in front of the same judge, with a new jury.
http://hamptonroads.com/2009/02/jury-calls-10-years-frederick-officers-slaying
Ive now seen the first cop threat against ryan. From the pilot…
Nate Davis Wrote:
“I hope he never calls the police for anything. He killed a police officer. As a fellow officer I hope I have the chance to respond to him in a time of need. I will show him the same callousness, disregard, and recklessness he showed Officer Shivers. The Bible talks about a place for people like you Ryan. And it ain’t heaven!”
Obviously, I don’t agree with this verdict, but I think they chose voluntary, as opposed to involuntary, because he got up to answer the door with his gun in his hand, before the door was broken. His reason for concern was the prior burglary, which would not have happened if he wasn’t growing.
Personally, I think the video should have nuked everything the prosecution said. They used three takes, and the sequence of events is completely different from the first to the last. That indicates that the police were scrambling to make their testimony fit into acceptable procedure. If the jury believes the cops are untruthful, the prosecution has nothing, because the snitches, jailhouse and otherwise, were the opposite of credible.
#9 I predict home invasion robberies will increase in VA as the criminals come to realize that those who have guns in the home will hesitate at hearing “POLICE!” screamed in their ears. The system has stated that anyone defending themselves from dirty cops will do time.
@AJP: I don’t think there is grounds for a sufficiency appeal. It will be a proposition on appeal, but it will not be upheld. The standard is whether a rational trier of fact, taking all of the inferences in favor of the state, could reach the verdict. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
In Virginia, 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).
Taking all of the inferences in favor of the state, the state proved the elements of voluntary manslaughter. I don’t know whether Frederick raised self-defense at trial, but if he did, he basically conceded the factual basis for a voluntary manslaughter conviction.
Now, as it happens, I think that there might be a successful claim that Frederick is not guilty as a matter of law, but that’s totally different.
In any event, his lawyer’s statements didn’t prejudice his client in any way, so jumping on them is just sour grapes.
John, it doesn’t sound like you and I disagree, really. I think your points just support my conclusion, which is that Broccoletti should have refrained from commenting at all.
Was the defense allowed to raise the question of the ‘reasonableness’ of the police action? If not, that might be an avenue for appeal. Note that questioning the ‘reasonableness’ of the police action might have been unwise while capital murder was on the table, but the risks would likely be absent on appeal.
From a Constitutional standpoint, police have zero authority to conduct unreasonable searches against any free person, period. Thus, if the raid was unreasonable, RF would have been entirely correct in believing that his home was being attacked by people who intended to subdue him or worse (probably just subdue him, though he couldn’t know that), and that those people had no legitimate basis for their actions.
With capital murder in the equation, Broccoletti was put in a bind of whether argue that RF identified his target (in which case he “should” have known it was a cop) or failed to do so (leading to the manslaughter charge). If the cops’ “reasonableness” comes into question, however, then Broccoletti could argue that RF had correctly identified the people breaking into his house as unlawful intruders; no further classification was needed.
I predict home invasion robberies will increase in VA as the criminals come to realize that those who have guns in the home will hesitate at hearing “POLICE!” screamed in their ears.
It would seem the ones yelling “police” audibly would be the imposters. “Real” ones wouldn’t bother.
John – I confess to not being an expert on the nuances of the Virginia case law. I’m curious about your statement that there is a difference between a challenge to the sufficiency of the evidence, and an assertion that RF is “not guilty as a matter of law.” I had always thought these were two different ways of saying the same basic thing, but maybe my understanding is incorrect.
Also, re: the quote from Belton, can you shed a little more light on the “reasonable provocation” element? Does that mean that the provocation has to be sufficiently reasonable to incite the “heat of passion,” notwithstanding that the killing in response to that passion is still unreasonable (and hence manslaughter)?
Finally, while I’ve not read the transcript, I am fairly certain that RF did indeed raise “self-defense”, and the jury was presumably instructed on that defense (indeed, its hard to see how RF could have escaped the capital murder charge in the absence of a self-defense argument). My question is, why do you say that by raising self-defense, RF “basically conceded the factual basis for a voluntary manslaughter conviction”? You agree that there must be some circumstances in which a homeowner is permitted, as a matter of law, to open fire on a forcible intruder who has broken into a home? If you agree, then based on the facts as I understand them, RF has a strong argument that the undisputed evidence at trial confirmed his right to fire in his own defense (assuming, of course, that the State failed to prove that RF believed he was firing on the police, an assumption that I think is now legally established as fact based on the jury’s acquittal on the capital murder charge).
Re: the comments by Supercat and others, I will confess to being befuddled by the prosecution’s argument that RF is guilty because he “failed to identify his target.” The law does not require that a homeowner know the name of the burglar prior to opening fire – If the law did require that, a stranger could waltz into your house, smack you in the face, and start emptying the silver drawer, and you would have no recourse.
What the law requires, as I understand it, is that you have a reasonable basis to believe that an unauthorized intruder is entering your home, and that your person or property may be in danger as a result. Under any standard, if people come to your front door, smash into it with sufficient force to knock out a panel, and then keep smashing at it, I think you have a reasonable basis to “identify” them as unlawful intruders, and act accordingly. Of course, if you identify them as police officers you can’t fire, but the State failed to prove that element of its case, hence the acquittal on the capital murder charges.
The State is playing a devious game here – Imagine if the person Ryan shot was not an officer, but was a drug dealer or a serial killer recently escaped from prison. Do you think anyone would suggest tha Ryan had commited voluntary manslaughter because he didn’t wait for the serial killer to finish breaking down the door and enter the house? Of course not. But the State doesn’t want you to think of it that way – They want to conflate what we now know (that Shivers was a cop) with what Ryan SHOULD HAVE KNOWN at the time of the shooting. Don’t fall for it – We know now that Shivers was a cop and Ryan was not in danger, by Ryan had no way of knowing that at the time, and hence the prosecution’s whole “identify his target” theory is nonsense.
Generally an appeal rests on some evidence that was either presented to the jury improperly or not presented to the jury when it should have been allowed. In those instances, it is assumed that the jury ruled rationally given the evidence before it. The entire basis of an appeal in that situation is that the jury would have ruled differently had the evidence in question been presented.
Phelps – Not sure of your point. While your description might be “generally” accurate, is is not uncommon for defendants to challenge the sufficiency of the evidence supporting a verdict. These challenges are a longshot, but they definitely can succeed, and RF has a decent basis for this kind of challenge here.
What the law requires, as I understand it, is that you have a reasonable basis to believe that an unauthorized intruder is entering your home, and that your person or property may be in danger as a result.
I believe that in Virginia, you have to believe that your person (or that of someone else with you) is in danger. Nonetheless, I would argue that RF certainly had a reasonable belief in that regard (and IMHO, a correct one, since had the door been breached before he fired he would quite likely have been shot dead).
Nearly all burglars intend to use stealth, force, or both. RF knew that the intruders were not using stealth. Not only do I believe RF had a reasonable belief that his door was being attacked by intruders who intended to subdue him or worse, but I see no way a rational person in his situation could have believed anything else.
Exactly, Supercat. And that is why, even if it is a bit of a longshot, I think this is the rare case where Ryan has a viable challenge to the legal sufficiency of the evidence on appeal.
#1 | Mike | February 4th, 2009 at 5:05 pm
“Could this be the case of he knows the jury will hear his remarks prior they give a sentancing reccomendation?”
Then he should refrain from comment.
I don’t have a huge problem with the defense attorney’s comment. Everyone who is saying he doesn’t want to irritate the jury is right, but there is a bigger picture to consider: this verdict will likely satisfy no one. The last thing you want to do is get the townsfolk all up in arms over your client because that is never in anyone’s best interests.
Vote in the poll
http://hamptonroads.com/polls/do-you-agree-voluntary-manslaughter-verdict-ryan-frederick
“… this verdict will likely satisfy no one.”
Those are the saddest and truest words written tonight.
The word “verdict” means “true speech.”
It impresses me that something designated “true speech” will satisfy no one.
There is truth in there. We yearn desperately for satisfactory answers, and there are none to be found.
@ AJP: When you make an appeal based on insufficient evidence, you are saying to the appellate court that the jury could not have reached the verdict they did based on the evidence presented.
Not guilty as a matter of law could be based on insufficient evidence (where the state doesn’t make a prima facie case), but I am thinking of the case where a valid defense exists in the law that is supported by the evidence (maybe even jury findings), such that the appellate court can vacate the guilty verdict and order the trial court to enter a verdict of not guilty.
Sadly, after a little research, the defense I thought might be available is apparently not available under Virginia law. There are still a lot of procedural errors (like letting the dead officer’s wife testify in stage 1 of the trial) that might provide relief.
What element of voluntary manslaughter do you think the state, taking all of the inferences in favor of the state, failed to prove beyond a reasonable doubt?
@ Supercat (#32): The search was conducted pursuant to a facially valid warrant and is per se reasonable on that basis. In any event, whether the search was reasonable is not a jury question (have we had this discussion before?)
AJP:
I couldn’t agree more. This case screamed for a directed verdict of “not guilty”.
As you said in other posts, substitute “meth-crazed outlaw” for “detective”, and see if the verdict would stand. It would not: the jury would acquit.
Thanks to John Jenkins for the case cites, but if this case triggers the Belton standard of “heat of passion”, then any self-defense case would do the same.
Thanks, John Jenkins. I’m not an expert on the VA case law, and at this point I have to drop out of the discussion and get back to work, but I was thinking that the State had failed to negate self-defense. In a lot of cases the elements instruction will include a qualifier along the lines of “not in necessary self-defense,” and thus negation of self-defense actually becomes an “element” that the State must prove beyond a reasonable doubt. And here, unless Ryan knew he was firing on an officer, I don’t see how a reasonable juror could conclude beyond a reasonable doubt that Ryan was not acting in self-defense.
Attorneys even defense are nothing but cogs in the wheel of “justice” in this formerly free Republic…
Dog & Pony then Twenty
@AJP: The prosecution does not have to negate self defense. Self defense in Virginia is an affirmative defense that the defendant has to prove, but only after the prosecution has carried its burden, meaning that the jury can acquit if (1) the jury doesn’t believe the state proved all of the elements of the charged crime; or (2) the jury can acquit if the state proved all of the elements, but the defendant asserts and proves a valid self-defense claim. See McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978).
Since Virginia is a retreat state, all the jury has to determine is that RF had a duty to retreat and didn’t, to negate any claim of justifiable use of deadly force in self defense.
You can review a discussion of the issues in an unpublished Va. Court of Appeals Opinion. here.
Thanks, JJ. I didn’t realize that self-defense in VA was an affirmative defense where the defendant bore the burden of proof. That does put things in a bit of a different light.
Supercat (#32): The search was conducted pursuant to a facially valid warrant and is per se reasonable on that basis. In any event, whether the search was reasonable is not a jury question (have we had this discussion before?)
No warrant authorizes cops to conduct a search in an unreasonable manner. Even if a particular search warrant is 100% beyond reproach, that does not imply that a cop holding that warrant has carte blanche to do anything and everything he wants at or in the property named thereon. A cop carrying out a search upon the dwelling of a free person has a duty to do so in such fashion to avoid unnecessary risk or harm to people and property.
While there may be arguments over whether certain risks or harms are “necessary”, and cops should be afforded some room for judgment, I see no reason for a cop to be allowed to act in a fashion which is likely to cause risk or harm without having to articulate a reason why such particular action was necessary.
Forcing entry into an occupied dwelling without making a real effort to identify oneself as a cop is dangerous and, in the absence of a very good reason for such action, stupid as well. Usually cops manage to make innocents bear the risk for their recklessness; in this case, a cop bore it himself. Given that the evidence being sought wasn’t even believed to be in the house they were breaking into, why did they have to force entry before the occupant could open the door? What was their basis for seeking to deprive RF of hundreds of dollars worth of front door? Did the cops exhibit any interest whatsoever in minimizing property damage?
As for previous discussions, I think they dealt with the general case. So let’s deal with the specific one. Has there been any factual finding in this particular case that the raid as conducted was reasonable? If so, who made the finding and what evidence was used in that determination?