Thoughts on the Jena 6

[Miss P]

Dang, son.

Thanks for doing all that work, Sands.  Now we know why you're in line to make the big bucks!

A few people asked me questions, either indirectly or directly, and I believe Sands mostly answered them (more accurately and precisely than I would have) except for Pseudo Nym's question about prosecutorial bias.  Unfortunately, I can't talk about my research because my team is under a confidentiality agreement, but I think there is a good amount of evidence of bias in the public view, including the "stroke of a pen" incident and the failure to investigate related incidents.  I'm sorry I can't be more helpful. 

[Burning Sands, Esq.]

Dang, son.

Thanks for doing all that work, Sands.  Now we know why you're in line to make the big bucks!

A few people asked me questions, either indirectly or directly, and I believe Sands mostly answered them (more accurately and precisely than I would have) except for Pseudo Nym's question about prosecutorial bias.  Unfortunately, I can't talk about my research because my team is under a confidentiality agreement, but I think there is a good amount of evidence of bias in the public view, including the "stroke of a pen" incident and the failure to investigate related incidents.  I'm sorry I can't be more helpful. 

Don't be silly, you've been droppin mad knowledge on the subject so far.  Keep doin what you do.

Interesting subject.  I gotta thank you guys for giving me something to keep my mind going during these long days.

[PNym]

Your post used the term "deadly" weapon a few times. Did you mean "dangerous" weapon? Even though I'm not knowledgeable about the applicable laws, I'm willing to bet that there's a distinction between these two terms.

ANALYSIS:

The Louisiana courts have allowed specific intent for attempted murder to be inferred from the circumstances surrounding a defendant's actions.  State v. Graham, 420 So.2d 1126 (La. 1982); State v. Boyer, 406 So.2d 143 (La. 1981).  However, it is notable to observe that even though the use of a "dangerous weapon"¹ is not essential to the charge of attempted murder,² the Louisiana courts have consistently found such an inference reasonable only when a "dangerous weapon" is used.  See Sanders, 742 So.2d at 1013-14 (finding that intent for attempted first-degree murder could be inferred from firing several shots from a gun at a police officer); see also State v. Scoby, 536 So.2d 615, 621 (La. Ct. App. 1st Cir. 1988), writ denied, 540 So.2d 339 (La. 1989) (finding that intent for second-degree attempted murder could be inferred from evidence that defendant stabbed the victim with a butcher knife while the victim was lying on the ground, pursued the victim as he attempted to flee, and that the victim suffered life-threatening injuries requiring medical attention); see also State v. Cushman, 481 So.2d 1376, 1378, 1380 (La. Ct. App. 5 Cir. 1986.) (finding that intent for attempted second-degree murder could be inferred from repeated beating of victim's skull with an iron pipe); see also State v. Latiolais, 453 So.2d 1266, 1267, 1269 (La. Ct. App. 3d Cir. 1984) (finding that intent for attempted second-degree murder could be inferred from stabbing the victim several times with a screwdriver). 

Likewise, the Louisiana courts have consistently held defendants guilty of battery (not attempted murder) where no deadly weapon was used during an assault.  See State v. Garner, 913 So.2d 874, 877 (La. Ct. App. 2d Cir. 2005) (noting that second-degree battery was the appropriate charge for defendant where no weapons were used during fight); see also State v. Scott, 836 So.2d 1180 (La. Ct. App. 2d Cir. 2003) (charging defendant in a school yard fight with second-degree battery where defendant beat victim in the head with his fists and elbows until victim was unconscious). 

It is most important to observe that the Louisiana courts have refused to infer the intent required for first or second-degree attempted murder if the evidence shows that the defendant only intended to cause bodily harm to the victim³ even when a deadly weapon is used.  See State v. Butler, 322 So.2d 189 (La. 1975); see also State v. Guin, 444 So.2d 625 (La. Ct. App. 3d Cir. 1983); see also State v. Linear, 600 So.2d 113 (La. Ct. App. 2d Cir. 1992).  The Louisiana courts have thus held that "a specific intent to inflict great bodily harm is sufficient to find a defendant guilty of murder if the victim dies, but is not sufficient to find him guilty of the attempt if the victim survives."  Latiolais, 453 So.2d at 1268.  "In such a case, the defendant's intent to inflict great bodily harm would be sufficient only to find him guilty of a battery.”  Id.  Furthermore, although "specific intent to inflict great bodily harm may support a murder conviction, attempted murder requires a specific intent to kill." State v. Holmes, 653 So.2d 642, 645 (La. Ct. App. 5th Cir. 1995).

So Louisiana courts have historically interpreted the requirements for attempted murder in a way that de-emphasizes the "manner used" of the weapon, in determining whether or not it qualifies as a "dangerous weapon" ("any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.")?

Credo's 1st post on this thread differently interpreted the requirement for a weapon to be classified as "dangerous weapon." I thought his interpretation was concurrent with the common use of English, which is which is why I'm surprised that Louisiana courts have repeatedly interpreted this requirement differently.

Here's Credo's post, so you don't have to search the thread:

The key here being "instrumentality, which, in the manner used, is... likely to produce... great bodily harm."

You stomp some prostrate kid with a shoe on and yes that shoe becomes a dangerous weapon for the purpose of this statute.  Its not hard to break a bone by punting some guy in the ribs with a basketball shoe on, especially if the guy doin the kikcing is a star fullback/linebacker.  It all hinges on how the shoe was used, if they just nudged him with their foot then thats not a manner of use likely to produce great bodily harm but there seems to have been evidence they were kicking him with some force.  Under LA law that qualifies as aggravated battery.  Its not some wild legal theory cooked up by the DA, Judge, and Jury.

FN6. Although the District Attorney cited the shoes worn by the Jena 6 as "dangerous weapons", the Louisiana case law does not support a charge of attempted murder where the "dangerous weapon" is a tennis shoe.  See State v. Munoz, 575 So.2d 848, 850 (La. Ct. App. 5th Cir. 1991) (holding that Rubber-soled tennis shoe which defendant was wearing when he kicked his victim in the head so forcefully that impact lifted victim's body off ground constituted a “dangerous weapon” for purposes of committing aggravated battery) (emphasis added). Therefore, the instant case is clearly distinguishable from Louisiana's attempted murder cases, and falls in line more so with its battery cases. [/size]

Did State v. Munoz explicitly preclude classifying the tennis shoes as a "dangerous weapon" for the purpose of an attempted murder charge?

[Burning Sands, Esq.]

No that's my typo.  I should have said "dangerous" weapon instead of deadly. 

As far as Credo's post - no we're saying the same thing.  Literally anything could become a "dangerous weapon" based on the circumstances.  The real question becomes - is it a "dangerous weapon" for battery purposes or for attempted murder purposes? 

What is important for us to note here is that, for attempted murder charges, the cases generally invovled dangerous weapons that were likely to produce death AND which were used in a manner that would likely produce death.  That would rule out Tennis Shoes for attmpted murder. 

For the battery cases, most of them did not invovle a "dangerous weapon" at all, and if they did, the "dangerous weapon" was something along the lines of the shoes which, in all likelihood, would be more likely to cause a black eye rather than cause death.   Even in the cases like Guin and Linear, the defendant was actually using a conventional "dangerous weapon" that we would all agree is a dangerous weapon in the common sense meaning of the word such as a knife or a gun but, because their intent was clearly to cause bodily harm and not death, a charge of attempted murder could not be sustained.  So it appears that the common theme in LA when it comes to weapons and attempted murder revolves around two things:

#1 - a conventional weapon that will likely kill somebody (ie. gun, knife, bomb, lead pipe)
#2 - using that weapon in a manner that will likely kill sombody

Throughout my extensive searches of the Westlaw and LexisNexis databases, I saw no case sustaining an attempted murder charge in Louisiana where the only "dangerous weapon" involved was a shoe.  Maybe I missed it.  I guess I can keep looking.

[Burning Sands, Esq.]

Here is an interesting counter-example from the state of Oregon with very similar facts.  Notice the charge given.


Court of Appeals of Oregon
State v. Cook
163 Or.App. 578, 989 P.2d 474
Or.App.,1999.


Defendant was a member of a group of people,^FN1 who severely beat another man, Spencer, in an altercation that took place outside a tavern in Baker City. The participants had been drinking before the attack occurred. Spencer was rendered defenseless and lay helpless on the ground soon after the attack began. Various witnesses tried to break up the altercation but, before they could do so, the group of attackers delivered multiple kicks to the victim's face and head with their shoes. As did other participants, defendant personally kicked Spencer in the head. Among other injuries, the victim suffered multiple facial fractures, a palate fracture and sciatic nerve damage.


FN1. Defendant was tried along with three other co-defendants: Stuart, Stanley and Marler.


Defendant was indicted on a single charge of assault in the first degree as a result of his role in the attack. The indictment alleged, in part:

“The defendants, acting together and as part of the same transaction * * * did * * * intentionally cause serious physical injury to [Spencer] by means of a dangerous weapon, to-wit: shoes * * *.”

At the conclusion of trial, the trial court acquitted defendant of first-degree assault, because the court did not find beyond a reasonable doubt that defendant intended to cause serious physical injury to Spencer.


---------------------

[Miss P]

No that's my typo.  I should have said "dangerous" weapon instead of deadly. 

As far as Credo's post - no we're saying the same thing.  Literally anything could become a "dangerous weapon" based on the circumstances.  The real question becomes - is it a "dangerous weapon" for battery purposes or for attempted murder purposes? 

What is important for us to note here is that, for attempted murder charges, the cases generally invovled dangerous weapons that were likely to produce death AND which were used in a manner that would likely produce death.  That would rule out Tennis Shoes for attmpted murder. 

For the battery cases, most of them did not invovle a "dangerous weapon" at all, and if they did, the "dangerous weapon" was something along the lines of the shoes which, in all likelihood, would be more likely to cause a black eye rather than cause death.   Even in the cases like Guin and Linear, the defendant was actually using a conventional "dangerous weapon" that we would all agree is a dangerous weapon in the common sense meaning of the word such as a knife or a gun but, because their intent was clearly to cause bodily harm and not death, a charge of attempted murder could not be sustained.  So it appears that the common theme in LA when it comes to weapons and attempted murder revolves around two things:

#1 - a conventional weapon that will likely kill somebody (ie. gun, knife, bomb, lead pipe)
#2 - using that weapon in a manner that will likely kill sombody

Throughout my extensive searches of the Westlaw and LexisNexis databases, I saw no case sustaining an attempted murder charge in Louisiana where the only "dangerous weapon" involved was a shoe.  Maybe I missed it.  I guess I can keep looking.

Yes, I think this is exactly right.  Here's an explanation coming from a different angle:

Use of a "dangerous weapon" is an element of aggravated battery in Louisiana.  "Dangerous weapon" is defined by the statute as "any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm." La.R.S. 14:2(A)(3). For the purposes of an aggravated battery conviction, the dangerous weapon used can be one that (as used) is intended or likely to cause death OR great bodily harm.   (This makes sense because while Louisiana battery and assault law is defined in terms of the instrumentality, common law aggravated battery is often defined in terms of the injury, as battery that causes great bodily harm.)

Use of a "dangerous weapon" is not an element of attempted second-degree (reckless) murder.  It is, rather, a judge-made standard about the kind of evidence from which the factfinder can infer intent to kill -- which is an element of the crime.  Thus, in an attempted murder case, the dangerous weapon must be one that (as used) is likely to cause death, not merely a weapon that (as used) is likely to cause great bodily harm short of death.  Otherwise, the weapon couldn't be offered as proof of intent to kill as opposed to proof of intent to cause great bodily harm (which is not sufficient to make out an attempted second-degree murder case).  

Sands may have meant to type "dangerous weapon" instead of "deadly weapon," but I actually think that a real distinction lurked beneath the slip.

EDIT

[Kirk Lazarus]

THE case of the so-called Jena Six has fired the imaginations of thousands, notably young African-Americans who, according to many of their comments, believe they will be in the vanguard of a new civil rights movement. Whether America needs a new civil rights movement I leave to social activists, politicians and the people who must give life to such a cause.

I am a small-town lawyer and prosecutor. For 16 years, it has been my job as the district attorney to review each criminal case brought to me by the police department or the sheriff, match the facts to any applicable laws and seek justice for those who have been harmed. The work is often rewarding, but not always.

I do not question the sincerity or motivation of the 10,000 or more protesters who descended on Jena last week, after riding hundreds of miles on buses. But long before reaching our town of 3,000 people, they had decided that a miscarriage of justice was taking place here. Their anger at me was summed up by a woman who said, “If you can figure out how to make a schoolyard fight into an attempted murder charge, I’m sure you can figure out how to make stringing nooses into a hate crime.”

That could be a compelling statement to someone trying to motivate listeners on a radio show, but as I am a lawyer obligated to enforce the laws of my state, it does not work for me.

I cannot overemphasize how abhorrent and stupid I find the placing of the nooses on the schoolyard tree in late August 2006. If those who committed that act considered it a prank, their sense of humor is seriously distorted. It was mean-spirited and deserves the condemnation of all decent people.

But it broke no law. I searched the Louisiana criminal code for a crime that I could prosecute. There is none.

Similarly, the United States attorney for the Western District of Louisiana, who is African-American, found no federal law against what was done.

A district attorney cannot take people to trial for acts not covered in the statutes. Imagine the trampling of individual rights that would occur if prosecutors were allowed to pursue every person whose behavior they disapproved of.

The “hate crime” the protesters wish me to prosecute does not exist as a stand-alone offense in Louisiana law. It’s not that our Legislature has turned a blind eye to crimes motivated by race or other personal characteristics, but it has addressed the problem in a way that does not cover what happened in Jena. The hate crime statute is used to enhance the sentences of defendants found guilty of specific crimes, like murder or rape, who chose their victims based on race, religion, sexual orientation or other factors.

Last week, a reporter asked me whether, if I had it to do over, I would do anything differently. I didn’t think of it at the time, but the answer is yes. I would have done a better job of explaining that the offenses of Dec. 4, 2006, did not stem from a “schoolyard fight” as it has been commonly described in the news media and by critics.

Conjure the image of schoolboys fighting: they exchange words, clench fists, throw punches, wrestle in the dirt until classmates or teachers pull them apart. Of course that would not be aggravated second-degree battery, which is what the attackers are now charged with. (Five of the defendants were originally charged with attempted second-degree murder.) But that’s not what happened at Jena High School.

The victim in this crime, who has been all but forgotten amid the focus on the defendants, was a young man named Justin Barker, who was not involved in the nooses incident three months earlier. According to all the credible evidence I am aware of, after lunch, he walked to his next class. As he passed through the gymnasium door to the outside, he was blindsided and knocked unconscious by a vicious blow to the head thrown by Mychal Bell. While lying on the ground unaware of what was happening to him, he was brutally kicked by at least six people.

Imagine you were walking down a city street, and someone leapt from behind a tree and hit you so hard that you fell to the sidewalk unconscious. Would you later describe that as a fight?

Only the intervention of an uninvolved student protected Mr. Barker from severe injury or death. There was serious bodily harm inflicted with a dangerous weapon — the definition of aggravated second-degree battery. Mr. Bell’s conviction on that charge as an adult has been overturned, but I considered adult status appropriate because of his role as the instigator of the attack, the seriousness of the charge and his prior criminal record.

I can understand the emotions generated by the juxtaposition of the noose incident with the attack on Mr. Barker and the outcomes for the perpetrators of each. In the final analysis, though, I am bound to enforce the laws of Louisiana as they exist today, not as they might in someone’s vision of a perfect world.

That is what I have done. And that is what I must continue to do.

ETA: http://www.nytimes.com/2007/09/26/opinion/26walters.html?ex=1348545600&en=cc3f51e0835ee8c7&ei=5124&partner=permalink&exprod=permalink

end of story as far as I'm concerned.

[Burning Sands, Esq.]

THE case of the so-called Jena Six has fired the imaginations of thousands, notably young African-Americans who, according to many of their comments, believe they will be in the vanguard of a new civil rights movement. Whether America needs a new civil rights movement I leave to social activists, politicians and the people who must give life to such a cause.

I am a small-town lawyer and prosecutor. For 16 years, it has been my job as the district attorney to review each criminal case brought to me by the police department or the sheriff, match the facts to any applicable laws and seek justice for those who have been harmed. The work is often rewarding, but not always.

I do not question the sincerity or motivation of the 10,000 or more protesters who descended on Jena last week, after riding hundreds of miles on buses. But long before reaching our town of 3,000 people, they had decided that a miscarriage of justice was taking place here. Their anger at me was summed up by a woman who said, “If you can figure out how to make a schoolyard fight into an attempted murder charge, I’m sure you can figure out how to make stringing nooses into a hate crime.”

That could be a compelling statement to someone trying to motivate listeners on a radio show, but as I am a lawyer obligated to enforce the laws of my state, it does not work for me.

I cannot overemphasize how abhorrent and stupid I find the placing of the nooses on the schoolyard tree in late August 2006. If those who committed that act considered it a prank, their sense of humor is seriously distorted. It was mean-spirited and deserves the condemnation of all decent people.

But it broke no law. I searched the Louisiana criminal code for a crime that I could prosecute. There is none.

Similarly, the United States attorney for the Western District of Louisiana, who is African-American, found no federal law against what was done.

A district attorney cannot take people to trial for acts not covered in the statutes. Imagine the trampling of individual rights that would occur if prosecutors were allowed to pursue every person whose behavior they disapproved of.

The “hate crime” the protesters wish me to prosecute does not exist as a stand-alone offense in Louisiana law. It’s not that our Legislature has turned a blind eye to crimes motivated by race or other personal characteristics, but it has addressed the problem in a way that does not cover what happened in Jena. The hate crime statute is used to enhance the sentences of defendants found guilty of specific crimes, like murder or rape, who chose their victims based on race, religion, sexual orientation or other factors.

Last week, a reporter asked me whether, if I had it to do over, I would do anything differently. I didn’t think of it at the time, but the answer is yes. I would have done a better job of explaining that the offenses of Dec. 4, 2006, did not stem from a “schoolyard fight” as it has been commonly described in the news media and by critics.

Conjure the image of schoolboys fighting: they exchange words, clench fists, throw punches, wrestle in the dirt until classmates or teachers pull them apart. Of course that would not be aggravated second-degree battery, which is what the attackers are now charged with. (Five of the defendants were originally charged with attempted second-degree murder.) But that’s not what happened at Jena High School.

The victim in this crime, who has been all but forgotten amid the focus on the defendants, was a young man named Justin Barker, who was not involved in the nooses incident three months earlier. According to all the credible evidence I am aware of, after lunch, he walked to his next class. As he passed through the gymnasium door to the outside, he was blindsided and knocked unconscious by a vicious blow to the head thrown by Mychal Bell. While lying on the ground unaware of what was happening to him, he was brutally kicked by at least six people.

Imagine you were walking down a city street, and someone leapt from behind a tree and hit you so hard that you fell to the sidewalk unconscious. Would you later describe that as a fight?

Only the intervention of an uninvolved student protected Mr. Barker from severe injury or death. There was serious bodily harm inflicted with a dangerous weapon — the definition of aggravated second-degree battery. Mr. Bell’s conviction on that charge as an adult has been overturned, but I considered adult status appropriate because of his role as the instigator of the attack, the seriousness of the charge and his prior criminal record.

I can understand the emotions generated by the juxtaposition of the noose incident with the attack on Mr. Barker and the outcomes for the perpetrators of each. In the final analysis, though, I am bound to enforce the laws of Louisiana as they exist today, not as they might in someone’s vision of a perfect world.

That is what I have done. And that is what I must continue to do.

ETA: http://www.nytimes.com/2007/09/26/opinion/26walters.html?ex=1348545600&en=cc3f51e0835ee8c7&ei=5124&partner=permalink&exprod=permalink

end of story as far as I'm concerned.

I do not find Distrcit Attorney Reed Walter's rendition of the facts persuasive here, nor has he provided any justification whatsoever in this article for his choice of the charge of attempted murder.

EDIT:  after watching CNN this morning I believe I heard something about this prosecutor has decided NOT to try Bell as an adult.  Which begs the question, if he believed that he was doing what was in the best interest of justice then why not continue to prosecute somebody who you feel has, according to you, perpetrated a crime against a helpless victim?   Given this new development, this letter seems more like damage control than anything else.

[Miss P]

I do not find Distrcit Attorney Reed Walter's rendition of the facts persuasive here, nor has he provided any justification whatsoever in this article for his choice of the charge of attempted murder.

Hear, hear.

I also think the issue about whether the nooses incident was prosecuted is a red herring.*  Informed observers question Mr. Walters' motives because his account of the beating and the attempted murder charge are unprofessionally misleading, he had previously told the black students (and perhaps the white students -- but reports differ) he could take their lives with the "stroke of a pen," his office failed to investigate the two incidents that immediately preceded the beating (the fights at the barn and the supposed "gun theft" at the convenience store**), and he and the police spoke only to white witnesses until the charges were filed (and ignored reports that, for instance, the victim was taunting the Jena 6 by referring to the fights at the barn).


*His description here is also inaccurate: the incident couldn't be prosecuted as a federal hate crime because the boys who hung the nooses were neither adults nor members of an organized group like the KKK, either of which would have qualified this incident as a federal hate crime.  And no, there is no stand-alone hate-crime statute in Louisiana (which I happen think is a good thing), but there were several other charges that could have been investigated, including simple assault, putting another person "in reasonable apprehension of receiving a battery" -- or aggravated assault, for that matter, since nooses are indeed dangerous weapons.  There's also terrorizing ("the intentional communication of information... that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety... or causing other serious disruption to the general public") and institutional vandalism (which can be prosecuted as a hate crime under Louisiana law). I'm not suggesting that all of the elements of proof of these charges were here (I doubt, for instance, that the putative assault victims could be described with sufficient particularity), but to say there was nothing on the books that could be used in the noose incident is misleading.

**This incident in particular is bizarre.  A white student pulled a gun on some black students, and they wrested it away from him and left.  They were charged with theft of the gun, but white student's initial threats, at gunpoint, weren't investigated.

[cui bono?]

I actually read an article by someone in the town who said that the "nooses" on the tree were just props for the schools pep week.  They were playing the "Cowboys," and the joke was they would hang them on the trees like they used to do in the wild west.  It had nothing to do with racial animus, and the boys who hung them continue to get threatening phone calls despite their innocent intentions. 

http://southerncrown.blogspot.com/2007/09/jena-louisiana-true-story.html

I agree that the prosecutor's article doesn't settle anything, especially the initial second degree murder charge.  I just posted it because it presented another angle that might be interesting to some people. 

I don't buy it for a second.  Why that tree?  Why not "laso" it around the tree or some other object if they were just messing around?  Timing seems off.