Dust Covers and Rules of EvidenceSteven Lieberman
Dust Covers and Rules of Evidence
Philip Brailsford (officer acquitted)
Daniel Shaver (suspect)
Last week we discussed Kate Steinly. One area that got specific attention from the blog was the decision by the judge to not allow the jury to hear about Zarate’s immigration status. This was based on a belief that the evidence was more prejudicial than probative. (Remember, the prosecution is presenting a theory. That theory, if accepted as true, must show that the defendant is guilty of a criminal offense. IF a jury is in a state of equipoise on any specific fact, they MUST err to the benefit of the defendant. Evidence that does little or nothing to prove a fact, but rather simply shows the defendant to be a piece of crap will not… nor should not… be allowed into trail.)
Not all of you agreed with that assessment, or were willing to forego the legal prohibition to achieve the greater good of letting the jury know that the defendant should not have been here in the first place. (However, as I said last week… I’m not sure the defendant’s immigration status, were it known to the jury, would have been prejudicial at all… quite the contrary I’m afraid.)
Well, the universe gave us another go at it this last week… and true to the Divine Comedy, the god’s have seen fit to let us analyze essentially the same evidentiary rule, this time resulting in the acquittal of a police officer.
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On January 18, 2016 Daniel Shaver was on a business trip. He was an exterminator that used a high powered air rifle to mitigate bird infestations in warehouses. By the end of the evening he would be shot and killed by Police Officer Philip Brailsford.
The shooting caused instant outrage among those that make their livings engaging in instant outrage. Daniel was unarmed at the time of the shooting. Worse… he was unarmed on his hands and knees and clearly intoxicated. He had no prior criminal record. Officer Brailsford, on the other hand, had… pause for dramatic effect… a personalized dust cover on the AR-15 he used to shoot Daniel. Worse… his dust cover had an expletive on it, the quote “Your F—ked”.
Armchair lawyers ran to their cabinets, grabbed their port and their smoking jackets and quickly fired up their lap tops to launch into full-scale diatribes against the police. Those that sit squarely on our side of the political aisle began their, “I told you so,” lecturing.
“Put that crap on your gun, and it will be used against you in court!”
“You would never see me putting anything like that on my weapon… that is a recipe for disaster!”
“Like I have said a thousand times before… personalized stuff on your gun is like begging a jury to find you guilty!”
It was never admitted into evidence.
The jury saw the evidence. The body cam video was presented, where the officer is heard repeatedly warning the suspect to keep his hands up or he will be shot. He drops his hands, and is then warned, in no uncertain terms, to raise them again. He inexplicably reaches back towards his right side waist, and is instantly shot multiple times. The jury found the officer’s actions reasonable, taken in the totality of the evidence that was provided to them.
But what about the dust cover?!?
Surely the dust cover shows that the cop was a jerk!
Yes, it does show that the cop had done a poor job of community relations. His employment history would further suggest he was not the “finest” of Tucson’s finest. (Prior to his acquittal he was terminated for unrelated misconduct).
But here is the thing… the cops personality was not on trial, his actions were. The question at bar was quite simple: Were the officer’s actions reasonable under the circumstances? Understand, the deep subconscious motivations were never a part of the jury’s instructions. As such, the inscription of the dust cover, if provided to the jury, would have proved to be more prejudicial than probative as to the reasonableness of his actions.
Many CCW holders have been remarkably hesitant to “personalize” their guns, or for that matter to proudly wear their leather holsters inscribed with the patriotic quotes or images of the 2A community (Concealed holsters of course!).
“I would, like to put this Punisher skull on the back of my Glock… but I am afraid it will be used against me.”
“If I put a Molon Labe image on my dust cover, or my magazine, well it might go against me at trial.”
Sigh… Has it ever occurred to those of us that cary guns that the mere fact that we carry guns could be used against us at trial?!
You will not be judged on your accouterment, nor your image de guerre. You will be judged on your actions… and whether those actions at the moment were, in a single word, “reasonable”.