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The Troubling Case of Cory Maye:
Kieran Healy points to an emerging blog movement concerning the very troubling case of Cory Maye, who is on death row in Mississippi for killing a police officer.

  The remarkable part of the case is that it seems pretty likely that Maye was acting in self-defense. The police broke into Maye's apartment at night while executing a warrant for drugs, but apparently they had the wrong apartment. Specifically, the police didn't realize that the apartment had been divided into two units, and — at least according to blog reports — Maye was in one and the drugs were in the other.

  According to Maye's testimony at trial, as reported in the Hattiesburg American on Jaunary 23, 2004, Maye had no idea that the people breaking in to his apartment were cops, and shot the intruder to protect his young daughter:
  Cory Maye, 23, said he was asleep on a chair in the living room of his Prentiss apartment as his 14-month-old daughter slept in the bedroom when he heard a loud crash at his front door.
  "I immediately ran to my daughter's room, got a pistol, put in a magazine and chambered a round," said Maye, who is on trial for capital murder in Marion County. "As I laid on the floor by the bed, I heard kicks at the back door. I was frightened, I thought someone was trying to break in on me and my daughter."
  ;Maye testified that it was dark in his apartment when he heard someone breaking into the back door, which was located in the bedroom.
  "That's when I fired the shots," Maye said. "After I fired the shots, I heard them yell 'police! police!' Once I heard them, I put the weapon down and slid it away. I did not know they were police officers."
  How could this have led to the death penalty, you're wondering? Well, first of all, I gather that the jury didn't believe Maye's story. Presumably they believed that Maye knew that he was killing an officer who was executing a warrant against him. Whether there was any evidence supporting that belief is unclear; the fact that the police didn't find the drugs in the apartment suggests that this story is pretty hard to believe. The case is now on appeal to the Mississippi Supreme Court, and I hope that court will take a very close look at the evidence.

  Second, the officer Maye shot and killed turned out to be the son of the local chief of police, who was a fourth-generation police officer. The local prosecutor in turn pushed for capital murder charges. (Lots of bloggers are also pointing out that Maye is black and the officer was white, although my recollection of the Baldus study is that the race of the victim and defendant generally aren't believed to exert a strong impact on the likelihood of capital punishment in extreme cases — and I think this counts as an extreme case.)

  The MSM hasn't paid any attention to this story, but it should. And I hope the Mississippi Supreme Court will be paying lots of attention, too. For more on the story, visit The Agitator, which has been leading the charge on this case.
Anderson (mail) (www):
No appeal notice has been filed with the Mississippi appellate courts. I have passed some blog links along to reporter friends down here in the Magnolia State, and I hope that we will get some good reporting on this case.
12.13.2005 1:19pm
DCLAWYER (mail):
When are we going to stop capital punishment in this country? Are we really better off with Tookie Williams dead? Or this latest example? Why are we so afraid of testing Roger Coleman's DNA in Virginia? Are we so afraid of finding out, what we know to be true in our hearts, that the state has and does execute innocent men?

I really think the time is ripe for people on the Left and Right to join forces on this. How can we distrust government when it comes to benefits and services, and have no qualms about allowing government to kill citizens, knowing full well that the criminal justice system is necessarily flawed?
12.13.2005 1:28pm
Kate1999 (mail):
DCLAWYER,

How can we trust the government to put people in prison for life? Don't you care about them, too?
12.13.2005 1:32pm
Kent Scheidegger (mail) (www):
The Baldus study did indeed find no race-of-defendant effect. The fact that the opponents' own studies repeatedly refute the type of discrimination that is of principal concern receives astonishingly little attention.

Baldus claimed that his study did show a race-of-victim effect. Properly interpreted, that would mean, if true, that the death penalty is not being imposed often enough in black-victim cases, not that anyone on death row doesn't deserve to be there.

But it's not true. The federal district court in McCleskey found that Baldus's model left out the completely legitimate factor of the strength of the prosecution's case. Another model that did consider that factor showed no statistically significant race-of-victim effect. Similarly, in a recent study in Maryland, the race-of-victim effect disappeared into the statisitical grass when the county was added to the model. It seems that the urban jurisdictions where most of the black people live tend to be politically liberal (stop the presses!) and elect DA's who seek the death penalty less often in borderline cases. The author of the study calls this "geographic disparity." I call it "democracy."

Further rants on race and the death penalty can be found in my Engage article.

If the description of the case in Orin's post is accurate, that would indeed be disturbing and an appropriate case for relief by executive clemency, if the courts do not overturn the judgment. However, great caution is in order before accepting case descriptions floating around the Internet. These descriptions are often wildly distorted.
12.13.2005 1:32pm
Sebastian Holsclaw (mail):
After reading all of the Agitator's posts I still believe that Maye was being railroaded, but it is important to note that there was a separate warrant for Maye's house. It was based on "occupant's unknown" which suggests (to me) that it was based on mere proximity to a suspected drug dealer. But there was a warrant for the half of the duplex which was inhabited by Maye.

The fact that the officer who was killed did not have his weapon drawn (and the fact that the drug agents let him go in first) suggests that they weren't expecting someone inside and that there really was confusion about what was going on.

Furthermore this is an excellent example of why these types of raids should be severely curtailed. Smashing in to an occupied house without warning in the middle of the night should be reserved for extreme cases where there is fear that someone is in immediate danger. The fact that they have become a fixture in the drug war isn't good for the civil rights of Americans.
12.13.2005 1:38pm
Michael Wade (mail) (www):
The police in fact did know the residence was a duplex and actually did have a warrant for Maye's residence. Furthermore, the police did find drugs in Maye's residence, although there seems to be a question as to the "discovery" of this evidence.

Unfortunately, the reporting of this case has taken on a life of its own without much regard for the actual facts. Personally, I think Maye was justified in shooting an unannounced intruder no matter whether he was a drug dealer or not. Neither the Second nor the Fourth Amendments have been repealed as far as I know. But the facts of the case should all be presented and made well known before passing any judgment on the validity of the verdict.
12.13.2005 1:40pm
dweeb (mail):
Kent, did the Baldus study deal with the entire country?
Having been to Mississippi, I'd have to say that unless it broke out each state for separate analysis, it's pretty useless for states like that one.
12.13.2005 1:46pm
DCLAWYER (mail):
Kate -- its hard to take you comment seriously unless you believe that there's no difference between execution and life in prison. Then there's the not so insignificant problem of irreversibility. Seems obvious to me. Are you arguing that because imprisonment is imperfect we shouldn't care about the greater imperfection of execution? That's a morally indefensible position.
12.13.2005 1:49pm
Kent Scheidegger (mail) (www):
Dweeb, each of the studies looks at one state. The Baldus study looked at Georgia, because it was commissioned by the NAACP for the purpose of attacking the death penalty there.

I'm not aware of a systematic study in Mississippi. You would think it would have been the opponents' target of choice, but apparently not.
12.13.2005 1:58pm
Kate1999 (mail):
DCLAWYER,

There is a difference, although I think one of degree, not kind. Reasonable people can disagree on that, I think; I hope you don't find that people who disgree with you are "morally indefensible" and not to be "taken seriously."

But there is a bigger difference in how the legal system treats capital punishment and life sentences, and I think that is indeed troublesome. Each and every case on death row is reviewed with a fine tooth comb by dozens of elite lawyers and activists, not to mention dozens of law clerks and judges. In contrast, no one cares about the much larger gourp of people who are serving life in prison. The irony is that a very high percentage of cases involving capital punishment are reversed, while it is very rare for any one with a life sentence to have that sentence overturned. So if your concern is the reversibility of the judgment and the likelihood of catching an error, it is much greater in the case of capital punishment.
12.13.2005 1:59pm
Nicole Black (mail) (www):
I argued and won an appeal wherein the judge failed to instruct the jury on the issue of the use of deadly force in defense of another, so I'm pretty familiar with the issues in this case.(See: People v. Sierra--resulted in reversal of the conviction and dismissal of the indictment).

I'm guessing that the jury did not find that Maye was justified in using deadly force in defense of himself or another since it appears that Maye himself was not faced with the threat of deadly force. Pursuant to his own testimony,he didn't see the intruder prior to firing. And, the officers alleged that their guns were not drawn when they entered the apartment.

A person is only justified in the use of deadly force against another if he reasonably believes that that such force is necessary to defend himself or a third person. (That's the rule in NY and presumably elsewhere. See this Wikipedia article.)

I'm not sure, based upon what I've read, that there is a strong argument in support of the contention that he was wrongfully convicted.
12.13.2005 1:59pm
Kent Scheidegger (mail) (www):
Following up on Kate's point, I read a story a while back about how many of the people removed from death row following Roper v. Simmons were dismayed by the action. No longer under sentence of death, they no longer had the right to appointed counsel in state or federal habeas, and the chances of proving their innocence claims dropped dramatically.

Opponents of the death penalty love to say that life in prison is cheaper. One of the reasons it's cheaper is the much lesser degree of scrutiny of the guilt verdict in life in prison cases.
12.13.2005 2:03pm
Cabbage:
Nicole, if someone kicks down my door at night am I not justified to think my life is in danger? If they kick down the door of my child's room, must I wait until I see a drawn gun to respond?

It's a horrible situation an officer was killed, and it is clear we don't have all the facts, but it doesn't seem right that the kicking down of the door itself wouldn't provide enough justification for acting in self defense.

Am I missing something? Don't police normally shout "POLICE" as they enter or is that just on TV?
12.13.2005 2:05pm
Thorley Winston (mail) (www):
I'm guessing that the jury did not find that Maye was justified in using deadly force in defense of himself or another since it appears that Maye himself was not faced with the threat of deadly force. Pursuant to his own testimony, he didn't see the intruder prior to firing. And, the officers alleged that their guns were not drawn when they entered the apartment.


IIRC the one who was actually shot had his gun holstered and there is also a question as to whether the police identified themselves prior to the shooting. These are all questions of fact for a jury and barring any evidence of misconduct, I’d be cautions about second-guessing those who were actually charged with weighing the evidence including the credibility of the witnesses.
12.13.2005 2:08pm
Thorley Winston (mail) (www):
"cautions" = "cautious"
12.13.2005 2:10pm
Kent Scheidegger (mail) (www):
Nicole,

This is one of the few issues where I have supported defendants against the prosecution. I would say that unknown intruders breaking into your home in the night is per se sufficient to justify a belief in the need to use deadly force. The victim of such an assault should not be required to take the risk of ascertaining whether they are armed. That is why police are generally required to (and generally do) announce before entering.

I would say the defendant has a strong case if his version of the facts is believed.
12.13.2005 2:11pm
Nicole Black (mail) (www):
Cabbage--It's certainly arguable that one would be justified in acting in self defense in the situation where an intruder is breaking into your home, but generally, you can only use deadly force if you reasonably believe that your life is in danger (ie-you see taht the intruder has a gun and is pointing it at you or is running towards you w/ a knife). You've got an obligation to try to get out of that situation without using deadly force, and you have to believe that your own life is in danger (or the life of another person)prior to using deadly force.
12.13.2005 2:13pm
Nicole Black (mail) (www):
Kent, but isn't part of the rationale behind that "rule"-- that you might shoot your wife, mother, etc. who entered your home unexpectedly? Shouldn't one be obligated to investigate the situation somewhat before firing blindly at the "intruder"? And, mind you, I'm a former PD, so I have a tendency to be fairly liberal on these issues.
12.13.2005 2:17pm
Nicole Black (mail) (www):
Here's language from a web site that I came across when I googled this issue (not sure of the source itself, but it is a good summary of the legal issues. I italicized a section that basically reiterated the point I made above re: blindly shooting at the intruder:


Defense of home

To the law, your home is your castle. It is your place of last retreat. You are not required to retreat from a threat in your home. When defending your home against a burglary, authorities rarely question the use of force¾ even deadly force. Burglary is legally defined as:

the breaking and entering,
without consent,
of the dwelling house of another,
while it is occupied,
at night,
with the intent to commit any felony or larceny therein.

If you believe a burglar is serious physical threat to you or your family, the law allows you to use whatever force you feel is necessary to neutralize the threat. However, here again, one must be careful since not all intruders are burglars. Someone may be intoxicated and enter the wrong apartment. A firefighter may be trying to break-in to warn you of a fire in your home. Wildly shooting at anyone who trespasses onto your property is not reasonable self-defense. If the mistaken use force is reasonable under the circumstance and no one is seriously injured. the law will generally excuse the action. However, remember that the victim may still pursue you in civil court.

The use of force is justifiable only if the actor first requests the intruder to desist from his interference with the property, unless the actor reasonably believes that:

1.

Such request would be useless,
2.

It would be dangerous to the actor or another person to make the request, or
3.

Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.
4.

The use of deadly force is not justifiable in the defense of premises unless the actor reasonably believes that:
1.

The person against whom the force is used is attempting to dispossess the actor of his/her dwelling otherwise than under a claim of right to its possession; or
2.

The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other criminal theft or property destruction; except that
3.

Deadly force does not become justifiable under A or B unless:
1.

The person against whom it is used has used or threatened deadly force against, or in the presence of, the actor or
2.

The use of force other than deadly force to prevent the commission or consummation of the crime would expose the actor, or another in his/her presence, to substantial danger of serious bodily harm.

These are defenses to criminal charges which will be brought against you if you defended yourself. Even if the prosecutor or police decide not to bring criminal charges against you or if you are successful in proving that you were protecting yourself as permitted under certain provisions of the criminal code, the attacker if injured still may attempt to bring a civil suit to recover for any medical expenses or injuries incurred.
12.13.2005 2:23pm
Nicole Black (mail) (www):
Here's the link to the web site that I quoted from, above.
12.13.2005 2:24pm
Orangutan (mail):

This may seem silly, but can't both sides of the death penalty argument come to some kind of compromise?

Proponents seem offended that a life-sentence would allow the killer to "live" in prison (classically watching cable tv and lifting weights) while the killer's victim is denied those things. There is also the idea that the killer being alive will haunt the victim's family and add to their suffering.

Opponents often cite barbarism and the fact that an execution effectively makes us all the executioner. In the case of an innocent execution, it makes us all murders. Can you weigh one innocent life against 100 guilty killers and say it's okay? Collateral damage? How about ten guilty lives to one innocent? Where do you draw the line?

As we saw with the emergence of DNA, technology can revolutionize penal policy. Why not apply that to this issue? What if instead of a lethal injection, we administer a coma-inducing injection? The prisoner is not killed, we do not kill him, but he is left without his consciousness. He is kept that way indefinitely, until he naturally passes. Wouldn't this address the concerns of both sides of the argument? Cruel and unusual? It could be argued that it is both, but it seems less cruel to me than death. Some might argue that this would cost more money, but that would have to be weighed against the moral cost of killing. Besides, normal prison costs would be greatly reduced since the prisoners would simply be occupying a bed somewhere.

I realize that an innocent put in a coma is not much better off than an innocent executed, but it would still allow his revival if exonerating evidence is uncovered in the future. With forensic technology continually advancing, wouldn't this be a responsible solution?

I believe that we have executed innocent people. The frequency of DNA exonerations seems to confirm it. It has happened.
The justice system is not perfect, but it is not oppressive on its face. When racial, economic, scientific, and political factors are removed, it is an enlightened system compared to most civilizations. But those factors can't be removed, so we have to incorporate them into some type of solution.
12.13.2005 2:31pm
Anderson (mail) (www):
Nicole, that's an awful lot to think about when someone may be about to kill you &your daughter, isn't it?

Since this is a Mississippi case, Miss. law on self-defense might be relevant:
Insofar as the defense contemplates the prospect of physical violence against the premises owner or some other occupant, the defense invokes many of the same considerations as that of pure self-defense, the principal distinction apparently being that the threat of serious bodily injury need not be as imminent in defense of habitation as in a case of individual self-defense. Thus, if it appears reasonable for the occupant to conclude that the ultimate purpose of the trespasser is to inflict such harm, then, because of the law's recognition of the sanctity of one's own residence, deadly force may be employed to end the potential danger at a stage before the actual threat becomes immediate.
Lester v. State, 862 So. 2d 582 (Miss. Ct. App. 2004). How that's applied is of course debatable, but I don't think that Maye had to see a guy with a gun coming at him.
12.13.2005 2:31pm
Justin (mail):
Although Katie's logic has a certain point to it, the logic she historically has concluded with (to increase the risk of error in capital cases) is not only absurd and depressing, but destroys any point the position would otherwise have.
12.13.2005 2:35pm
byrd (mail):
Nicole: while many states do require the 'victim' to attempt to flee before using deadly force in a public place, I'm not aware of any state that applies that requirement to the home.

If Maye's story is correct, this case is a stunning outrage.
12.13.2005 2:37pm
Michael Wade (mail) (www):
Nicole:

Someone breaking into your house in the middle of the night unannounced is the definition of "burglar" absent intent. In Virginia at least, at most likely in Mississippi as well, there is no requirement that I ascertain the intent of the intruder before using deadly force. Nor should there be. It is quite possible that Cory Maye had no idea who was breaking into his house, nor that he had any indication that it was at the police whom he fired (N.B. however, later police testimony apparently asserts that the deceased yelled "Police" upon entering in contravention of the "no knock" warrant). Under such circumstances, it's hard to understand what Mr. Maye (or anyone else) should have waited for.
12.13.2005 2:37pm
Kate1999 (mail):
Justin writes:

"the logic she historically has concluded with (to increase the risk of error in capital cases) is not only absurd and depressing, but destroys any point the position would otherwise have"

What does this mean? I don't recall making an argument in favor of increasing risk in capital cases.
12.13.2005 2:38pm
byrd (mail):
Well, I got distracted while typing my above post and I see the debate has moved on, so please disregard it. I will say that I think Maye's situation fits the description of allowable deadly force in Nicole's post--so long as he fired before the police announced themselves. They weren't drunks at the wrong door--they were busting in in an unmistakebly violent manner.
12.13.2005 2:43pm
JohnAnnArbor:
Orangutan:

One word: bedsores.
12.13.2005 2:46pm
htom (mail):
I suddenly understand why it was claimed that the deceased officer was either unarmed or had not drawn his side arm. I hate being so cynical, but I see no reason to belive this. He was wearing a vest for doing a dynamic entry but was unarmed?

If there wasn't a body we'd all be laughing.
12.13.2005 2:46pm
Anderson (mail) (www):
Yeah, htom, it's not nice to say that the police chief's dead son was an idiot, but that's what's implied if his gun was indeed holstered. Which as you noted is implausible.

Just think, if he'd had his gun out, he might've shot Maye dead and none of us would've heard of either of them.
12.13.2005 2:51pm
Greedy Clerk (mail):
Orin -- unfortunately, Randy Balko's original facts were wrong (and he has so admitted), and they are being repeated throughout the blogosphere. The police clearly DID know that the apartment was divided into two units, and clearly DID have two search warrants. The case is still very troubling, but it is a shame that everyone is getting the facts wrong, and may lead some to write this whole case off as based on faulty facts.

I suggest you issue a correction.
12.13.2005 2:51pm
AppSocRes (mail):
It seems to me that this boils down to a "he said, she said" case. If the police announced themselves, as I am assuming they claimed at trial, then the defendant is guilty as charged. If they did not, as the defendant claims, he is guilty of some less serious form of homicide. What that might be probably depends on state law.

My personal opinion - Someone who does not know at whom he is shooting when the target has announced that he is a policeman probably deserves what they get: Owning or wielding a gun creates a heavy responsibility. Which leads me to the thought, as a long-time gun owner, that the people who are defending this irresponsible gun owner are in all likelihood, mostly opposed to responsible people owning and using guns.
12.13.2005 2:52pm
OrinKerr:
GreedyClerk,

What difference does it make that there were two warrants, one of which covered Maye's apartment? It might make a difference from a Fourth Amendment standpoint, but I don't know why it matters for the purposes of the substantive offense.
12.13.2005 2:58pm
Nicole Black (mail) (www):
Well, if we're going to discuss the specific Mississippi law in the context of a criminal proceeding, then I agree, let's review the correct law. Here's a link to the Mississippi law re: justifiable homicide.

I believe that the relevant sections would be: 1(e)&(f):

(1) The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:

(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling house in which such person shall be;

(f) When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;

It's entirely feasible that, based upon the testimony and the evidence in this case, the jury concluded that a felony was not being committed by the police, which makes 1(e) inapplicable.

So, we're left w/ the issue of whether Maye's belief that a felony was being committed or whether he or a third party was in imminent danger. That would be a question for the jury to decide, along w/ applying the relevant standards for the use of deadly force. I am simply saying that I can see where a jury would find that his decision to fire without any knowledge whatsoever as to who was on the receiving end of the bullets was unreasonable.

And, byrd, you are correct. I mis-spoke re: the duty to retreat. That doesn't apply when in one's home.
12.13.2005 2:58pm
Barry P. (mail):
Anybody remember the Yoshii Hattori case?

If the shooter got off in that case, then this case makes no sense.
12.13.2005 3:01pm
SP (mail):
It is unfortunate that, ultimately, massive police incompetence is to blame. Why should the police get the benefit of the doubt when it is clear they had no idea what they were doing, being reckless about it, and using no precautions?

I say this as someone who actually lived next to a drug dealer in a duplex while in law school. I shiver at the idea that one day the police could simply decide the want to come smashing in. Mistakes are going to happen, but that's why you yell "police!" Or, here's a thought - maybe stake out the area first before you decide to invade?
12.13.2005 3:04pm
Fishbane (mail):
It is sobering to compare this with situations referred to by The Clash over 25 years ago:

When they kick at your front door
How you gonna come?
With your hands on your head
Or on the trigger of your gun

When the law break in
How you gonna go?
Shot down on the pavement
Or waiting on death row

(I hope that's short enough to be fair use.)
12.13.2005 3:08pm
Bill R:
Cabbage,

I agree with you. However, it has always struck me that just hearing "POLICE" yelled does not mean, in the absence of other hints that it really IS the police rather than a home invader buying some critical time, that a homeowner may not be justified in using deadly force against an intruder who later turns out to be a policeman.

If one lives in a densely populated urban area, the additional hints might need to be pretty minimal. For example, anything that made the party entering very conspicuous to neighbors would suffice (such as very noisy entry from multiple entry points, flashing red lights from police cars outside, maybe a few blips of a police siren from outside the house etc.) as a home invader is unlikely to make him/herself that conspicuous and subject to identification and/or apprehension. I think it is very reasonable to expect the police to provide such overwhelming additional hints where possible when executing a search warrant (obviously, since the element of surprise may need to be maintained, they would probably hit the lights and sirens just as the door was being crashed).

In any location (urban or rural), unless one has VERY valuable assets in their house, a helicopter or two flying overhead with spotlights on the yard/house should probably be enough to convince the occupant that “POLICE” means just that. Again, it is unlikely that a home invader will spend the resources on a helicopter (and perhaps pilot) and due to air traffic control and FAA paper trails and the like, such an act would also seem to expose them to a higher risk of apprehension.

Yes, impersonating a police officer is illegal – but if I were a home invasion robber I would not worry about that – esp. if I was expecting to kill the occupants anyway. Therefore, I would not expect a homeowner to assume that anyone who claims to be “the police” are in fact telling the truth. I guess some defendant somewhere wishes I had been on their jury!
12.13.2005 3:08pm
buzz:
I'm not sure what the law is in NY but here in the Midwest "You've got an obligation to try to get out of that situation without using deadly force, and you have to believe that your own life is in danger (or the life of another person)prior to using deadly force." doesn’t apply. If someone breaks into your house, you have the right to deadly force. I agree one shouldn’t spray bullets indiscriminately AND should ID the target, but I have a hard time second guessing someone who is abruptly awakened by an intruder who moves towards him in the dark. It is one thing to confront an intruder who is moving AWAY from you and possibly exiting your home and one who is moving TOWARDS you giving very little time for a life and death decision. Colorado passed a "make my day" law a number of years ago and I believe Texas did the same recently. Those states in this part of the country that don’t have a law like that on the books operate under an unwritten law that allows deadly force. In other words, there may not be a law that states you can shoot a burglar, but if it happens you more than likely won't go to jail. As I understand it, some states in the NE part of the country actually did require the resident to make all possible effort to get away from an intruder up to and including fleeing their own house, but not here. I have no idea what the law in Mississippi is, but I would bet that if this exact same thing happened under the exact same circiumstances with the exception of the intruders were not the police, but rather criminals kicking in this man’s door, even yelling “POLICE”, he wouldn’t be on death row. It’s unlikely he would be in jail, and I would doubt he would even loose his gun.
12.13.2005 3:09pm
JohnAnnArbor:
Anybody remember the Yoshii Hattori case?

That's right; poor kid died because he didn't know "freeze" in English. He wasn't threatening the homeowner in any way; the homeowner just blew him away for walking onto his property.

You're right, Barry. How can the two cases be reconciled?
12.13.2005 3:09pm
Steve:
Which leads me to the thought, as a long-time gun owner, that the people who are defending this irresponsible gun owner are in all likelihood, mostly opposed to responsible people owning and using guns.

I wonder how this commenter came to the conclusion that this defendant was an "irresponsible gun owner." Of course the police are going to claim they announced themselves, whether or not they did.

It seems to me that the exact reason why many people prefer to own a gun is so they can defend their families against intruders in the middle of the night. What good is the right to self-defense, though, if even "long-time gun owners" are going to jump to the conclusion that the person who defended himself must have done so irresponsibly?
12.13.2005 3:12pm
Justin (mail):
I remember a past argument from you that death penalty inmates get too many appeals and whatnot, and that the problem with the death penalty was that it was not enforced often enough. In the context of your previous post, in which you call for equalization of death penalty and life in prison, it appears against that context that you are arguing for treatment of death penalty victims to be brought down in terms of due process to that of life in jail prisoners.

Given that you make this statement:

The irony is that a very high percentage of cases involving capital punishment are reversed, while it is very rare for any one with a life sentence to have that sentence overturned. So if your concern is the reversibility of the judgment and the likelihood of catching an error, it is much greater in the case of capital punishment.

it seems you are clearly admitting that trial courts are *not* very good at determining guilt or innocence, so any removed chance to obtain an appeal is a decrease in "catching an error", or an increase in the margin of error.

Now, if my memory about your previous position is incorrect, or you have switched positions since, and you are simply calling for better scrutiny of the cases of all convicted felons by the courts (and the increased funding to allow courts to accomplish this goal), then I am firmly behind you.
12.13.2005 3:21pm
Thorley Winston (mail) (www):
<
Orin -- unfortunately, Randy Balko's original facts were wrong (and he has so admitted), and they are being repeated throughout the blogosphere. The police clearly DID know that the apartment was divided into two units, and clearly DID have two search warrants. The case is still very troubling, but it is a shame that everyone is getting the facts wrong, and may lead some to write this whole case off as based on faulty facts.


Must be a full moon, Greedy Clerk’s right for once ;).

Seriously though, his point is a good one in that the facts appear to be changing quite a bit from how they were initially reported and a lot of folks – who unlike the jury weren’t at the trial and didn’t get a chance to hear all of the legally relevant evidence and weigh the credibility of the witnesses. Barring any evidence of misconduct (and disagreeing with the result, particularly when one doesn’t have all of the facts doesn’t come close to cutting it), I’d urge caution in jumping to conclusions or at the very least, temper my criticisms by asking questions about what the law is and the facts (as many posters have done) rather than making blanket condemnations.

On a related note, there was another more recent shooting by a homeowner – this time of a convicted felon – and the Mississippi may be taking up the issue of changing their State’s laws on the Castle Doctrine as Florida recently did. This suggests to me, that Mississippi’s law on the right of a home owner to shoot an intruder may not be quite as liberal as some may have assumed. An issue that no doubt weighed on the minds of the jury who did not find the Maye’s shooting to be justified.
12.13.2005 3:22pm
Thorley Winston (mail) (www):
I wonder how this commenter came to the conclusion that this defendant was an "irresponsible gun owner." Of course the police are going to claim they announced themselves, whether or not they did.


And no doubt the shooter – facing the possibility of a death sentence – is going to claim that the police didn’t announce themselves, whether they did or not. Particularly when his guilt or innocence may turn on that fact.

It seems to me that the exact reason why many people prefer to own a gun is so they can defend their families against intruders in the middle of the night. What good is the right to self-defense, though, if even "long-time gun owners" are going to jump to the conclusion that the person who defended himself must have done so irresponsibly?


That’s why we have juries. In this case a jury of twelve men and women heard the relevant facts and weighed the credibility of the witnesses to decide what actually happened. After doing so, they’re made the decision that Maye’s shooting was not justified according to the laws of the State of Mississippi. You or I might disagree with that decision, but deferring to the jury which was entrusted with this duty and had access to more information than we do from a second or third-hand internet account is hardly “jump[ing] to [a] conclusion.”
12.13.2005 3:34pm
buzz:
It seems to me that this boils down to a "he said, she said" case. If the police announced themselves, as I am assuming they claimed at trial, then the defendant is guilty as charged. If they did not, as the defendant claims, he is guilty of some less serious form of homicide. What that might be probably depends on state law.

My personal opinion - Someone who does not know at whom he is shooting when the target has announced that he is a policeman probably deserves what they get: Owning or wielding a gun creates a heavy responsibility. Which leads me to the thought, as a long-time gun owner, that the people who are defending this irresponsible gun owner are in all likelihood, mostly opposed to responsible people owning and using guns.


I don’t know how you can come to either conclusion. He was convicted for capitol murder. This means he knew he was shooting at a police officer. Assuming he was awakened from a sound sleep, he had seconds to wake up, assess the situation, realize there was a policeman coming toward him, and decide to shot the cop. I find that very hard to believe. I can see a case of manslaughter, ASSUMING facts as reported by the police are correct. Essentially whoever decided to conduct a forced entry raid in the middle of the night created this situation, and hold some responsibility in the outcome. There were a number of possiblities here. One is good, apologies all around when nothing is found, no one injured. The rest bad, one or more police dead, Mr. Mayes dead, the baby dead. Are the risks the police took worth the payoff? As far as the irresponsible gun owner comment.....I honestly don’t know if I would do anything different myself if someone kicked my door in tonight. If I know it’s the cops, then I wouldn’t go anywhere near a gun. If, OTOH, it’s some guy dressed in black running at me......
12.13.2005 3:36pm
stevesturm:
I'm looking to see if those who profess to be such big believers in the system are willing to let this guy get executed if (a big if) it turns out the system 'worked' in that he was represented by competent counsel, he isn't retarded, a confession wasn't beaten out of him, he wasn't a minor at the time of the shooting and so on.

After all, it's one thing to support the process that yields outcomes like that of Tookie Williams... another thing to support the process when outcomes like this are the result...

More here
12.13.2005 3:41pm
The NJ Annuitant (mail):
If the facts are as presented, it would appear to be a justifiable shooting. I think you can assume that people violently breaking into your home mean you grave harm.
12.13.2005 3:46pm
buzz:
Thorley Winston is absolutely correct in that we should withhold judgment until we can see exactly what evidence was provided in the trial. Everything I have posted, I should have made clear my opinion was based on a particular set of circumstances. If actual events do not match these circumstances, then I would obviously be wrong. Based entirely on the supposition that Mr. Mayes was asleep, and was awakened by someone forcing their way into his house, charging into a back bedroom where his child was sleeping, my previous comments stand. People will do completely irrational things however and it is entirely possible he did what the state alleged and deserves the penalty he got, but I really would like to see the transcripts. As far as the case Mr. Winston provided a link to, I have real problems with that one. I would have to agree with the previous poster about irresponsible gun ownership. Firing thru a door is about the worst thing you can do. It is incredibly easy to shoot the neighbor across the street, someone passing by in a car, some neighbor kid playing a prank on you or in some cases, some poor foreign kid who doesn’t understand the word "freeze". Once the guy gains entry? Sure.
12.13.2005 3:51pm
Anderson (mail) (www):
You're right, Barry. How can the two cases be reconciled?

That's what Louisiana is for ... making Mississippi look good. Gotta love 'em for that.

Thorley is right to point out that the jury heard the evidence and we haven't. The transcript will presumably come to light in due time. But I do hope that Thorley isn't kidding himself that racism is a thing of the past in rural Mississippi. It seems pretty darn evident that the jury didn't try to imagine themselves in Maye's shoes.
12.13.2005 3:54pm
big dirigible (mail) (www):
He wasn't threatening the homeowner in any way; the homeowner just blew him away for walking onto his property.

There was just a teensie bit more to it. The original news reports circa 1992-93 had details which are not usually recounted today, now that the late Mr. Hattori is a poster boy for international gun control. Simply "walking onto his property" is a gross oversimplification of the alleged situation.

But back to the unfortunate Mr. Maye. We're firmly in "term of art" territory. I discussed a similar matter a few years ago with some small town police officers in Massachusetts. According to them, the standard for the use of deadly force was that the user of such force had to be in fear for his life. That's the term of art - it doesn't mean literally what it says. A person does not have to wait until a knife is stuck a half inch into him and decide that yes, that might soon be a fatal wound, before he takes action. In MA at that time, an intruder breaking in was automatically considered to put an occupant in fear for his life, with no further evaluation required. And in that case, use of force, up to and including deadly force, would be considered legitimate.

What's up in MA has little to do with the legal details in other states, of course.
12.13.2005 4:12pm
Aultimer:
What difference does it make that there were two warrants, one of which covered Maye's apartment? It might make a difference from a Fourth Amendment standpoint, but I don't know why it matters for the purposes of the substantive offense.

It goes to reasonableness if I'm on the jury. Criminals have a greater reason to expect that they guys breaking in to their home are police than do non-criminals. Of course, if they happen to deal drugs from their home, they may have a greater reason to expect non-police to break-in, but that's not going to get much weight from me in the jury room.
12.13.2005 4:32pm
Joshua (mail):
The MSM hasn't paid any attention to this story, but it should.


I wonder how much coverage this is getting in the European MSM. They're both anti-gun and anti-death penalty, not to mention generally anti-American. This would have to be their dream story; it gives them a chance to bash America from both sides of the case!
12.13.2005 4:35pm
Steve:
I don't see how the terms of the officer's search warrant can possibly go to the reasonableness of the homeowner's defense, unless you can show that the homeowner was in a position to know the terms of the officer's search warrant.
12.13.2005 4:38pm
Justin (mail):
Out of curiosity, is there any *logical* chain of events that support the conviction?

I.e., is there any claim of events that this guy had a thing for killing cops, so that he was willing to kill one who announced himself as a police officer? I mean, I don't think he killed the cop to try and get out of the drug charge or whatnot - I'm just trying to see if there's a rational explanation that a defender of the verdict such as Thorley could have given, since what we have here is a credibility determination and the prosecutor's argument seems wildly fantastic at first glance.
12.13.2005 4:45pm
Thorley Winston (mail) (www):
Thorley is right to point out that the jury heard the evidence and we haven't. The transcript will presumably come to light in due time. But I do hope that Thorley isn't kidding himself that racism is a thing of the past in rural Mississippi. It seems pretty darn evident that the jury didn't try to imagine themselves in Maye's shoes.


As I said before, if you anyone else has any actual evidence of misconduct, feel free to present it. The simple contention that because the defendant was black, the victim white and the jury (or a majority of jurors) were white that they were therefore automatically unable to do their duty as jurors without passion or prejudice doesn’t cut it.

Moreover one of the “facts” that Radley Balko later had to correct was his original contention that the jury was all white. Now he appears to be saying that there were some blacks on the jury. Since the jury would have to render a unanimous verdict to convict on a capital murder case, the racism implication is even weaker in light of the fact that the black jurors (who along with the white jurors would have all agree to vote to convict) would also have to be prejudiced against a black defendant.
12.13.2005 4:48pm
htom (mail):
AppSocRes -- sorry; I happen to be one of those gun nuts who believes that "gun control" means "hitting your intended target". I've come too, too close to wearing his shoes, having lived in a very bad neighborhood.
12.13.2005 4:50pm
Michael Wade (mail) (www):

What difference does it make that there were two warrants, one of which covered Maye's apartment? It might make a difference from a Fourth Amendment standpoint, but I don't know why it matters for the purposes of the substantive offense.

Orin:

I might ask you the same question with respect to why you saw fit to (erroneously) introduce the case this way:


The remarkable part of the case is that it seems pretty likely that Maye was acting in self-defense. The police broke into Maye's apartment at night while executing a warrant for drugs, but apparently they had the wrong apartment.

Why did you think it was important?

It seems fairly obvious that Mr. Maye's culpability is absolutely zero if the police do indeed break into the wrong home altogether. But that culpability is somewhat more than zero if the police had a valid search warrant (suggesting that Maye had committed some act or ommission to generate probable cause), and executed that warrant within the parameters of the law. I don't know that this in fact happened here, but the fact that a warrant was issued certainly places the actions of the police in a different light doesn't it?
12.13.2005 5:17pm
Roger Schlafly (www):
Are we really better off with Tookie Williams dead?
Yes. I didn't want him writing any more children's books and dedicating them to convicted murderers. I don't want to hear his proclamations of innocence anymore. Good riddance.
12.13.2005 5:24pm
Wintermute (www):
This sort of thing is happening more and more these days.

Recent trial in Memphis.

Tennessee's provision:

Any person using force intended or likely to cause death or serious bodily injury within the person's own residence is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to self, family or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
12.13.2005 5:27pm
Dan Hamilton:
This case is why I live in Texas.
1. At night the bad guys are assumed to be armed.
2. You can shoot them to protect property let alone if they are breaking into your house.
3. It is black letter law that you can defend yourself against excessive force by the police. Dynamic entry by definition is excessive force that's the whole idea.

If you live through it in Texas you don't have to worry about jail but most of the time in these type of cases you don't live through it. But it does mean that the police are a lot more carefull. They do a dynamic entry by mistake on Honest Joe Citizen and he blows them away, Even if they are yelling POLICE, he most likely will walk.
12.13.2005 5:36pm
DJB:
Are we really better off with Tookie Williams dead?

Yes.
12.13.2005 5:39pm
Boris A.Kupershmidt (mail):
Until the fog clears,
it seems to be prudent
to stay away from Mississippi.
12.13.2005 5:39pm
Anderson (mail) (www):
who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence

That's the catch, Wintermute; if the entry is in fact lawful, EVEN IF THE INHABITANT HAS NO WAY OF KNOWING THAT, the exception doesn't apply.
12.13.2005 5:42pm
Aaron:
I just wonder if the same people here counseling deferrence to the jury's competence were as understanding when the Al-Arian verdict came down...
12.13.2005 5:44pm
Justin (mail):
Thorley, I'm not sure what you're asking for those who disagree with the verdict to show? A propensity for jurors to defer to prosecutors? Whether or not the jurors, who are anonymous as far as I can tell, may have had connections to the deceased? A propensity of jurors to believe black people are guilty? You seem to require a standard of proof that makes the question itself worthless, which may or may not be your point, but then go out and say that.

I don't think those who think the verdict is wrong suspect an open and overt conspiracy.
12.13.2005 5:46pm
Ofc. Krupke (mail) (www):
Dynamic entry by definition is excessive force that's the whole idea.

No it's not. The specific circumstances of a specific case determine what is "excessive" and what is not.
12.13.2005 5:47pm
bud (mail):
Greedy, Thorin, Orin-

Although there was a warrant for Mayes address, it did
not name him. Radley's blog has links to the warrant as well as the evidence (!) sheet. The warrant is pure boilerplate, with the address of the apt filled in. The Judge should be feeling a bit guilty, himself.

The evidence sheet has two times/dates blotted out, and was filled in *after* a police spokesman told the local media that "no drugs were found". And the cops shouted "Police" *before* the back door was kicked in? Right.

The War on Dru^H^H^ the Fourth Amendment continues.

email is human readable - aloud
12.13.2005 5:51pm
DJB:
After all, it's one thing to support the process that yields outcomes like that of Tookie Williams... another thing to support the process when outcomes like this are the result

I don't see the inconsistency. What's wrong with supporting the system when it is just and opposing it when it isn't?
12.13.2005 5:53pm
Pooh (www):
Beat me to it Bud - the facts, even if taken at the prosecutor's word, are pretty weak in the face of a 1st degree murder charge. The fact that the identity of the informant upon whose information the raid was authorized died with Jones is mighty convenient. As is the 'trace amounts' of pot found (or not).

Correct me if I'm wrong, but isn't the point of serving a warrant to demonstrate that the authorities are invading your home under cover of law? How can they claim exigent circumstances justifying this style of raid with no investigation of the unit?
12.13.2005 6:17pm
Joshua (mail):
Justin wrote:

I don't think those who think the verdict is wrong suspect an open and overt conspiracy.
Nor do I. And I don't think it's racism either. It seems to me that the real elephant in the room is that the sympathetic nature of the man Maye killed may have all but sealed Maye's conviction before the trial ever started.

Jurors tend to trust law enforcement in any criminal trial, unless the defense gives them a damn good reason not to. In a case like this, where the victim himself is not only a cop but a fourth-generation cop and the son of the police chief, the instinct to give wide latitude to the police is presumably even stronger, if not insurmountable. Not to mention that Mr. Maye's defense, as valid as it may be, smacks of blaming the victim and therefore probably never got much traction with the jury, even notwithstanding the victim's identity.

In any event, I don't envy Gov. Barbour (or his successor) his task one bit when the time comes to consider clemency or a pardon for Mays. After all, if he does spare Mays' life or even set him free, how will the law enforcement community in Mississippi take that?
12.13.2005 6:18pm
Greedy Clerk (mail):
Orin:What difference does it make that there were two warrants, one of which covered Maye's apartment?

Greedy: Because your blog post is factually wrong that the police did not know that there were two different apartments. I guess factual accuracy does not matter anymore?
12.13.2005 6:24pm
Anthony Leonson (mail):
Even if the police did yell out 'police' as they kicked the door in, the defendant stated he was asleep at the time. Is it unreasonable to believe he didn't hear it?

The defendant also had no criminal record, so the argument that:

It goes to reasonableness if I'm on the jury. Criminals have a greater reason to expect that they guys breaking in to their home are police than do non-criminals. Of course, if they happen to deal drugs from their home, they may have a greater reason to expect non-police to break-in, but that's not going to get much weight from me in the jury room.


The defendant was not a criminal. Did not have a criminal record. The police were looking for a drug dealer, but only found a small bag of marijuana and 3 smoked cigars that they thought had marijuana.

He was a criminal? What did he have to hide? Nothing.

Home defense laws generally have a lot to do with the belief of the shooter. In this case, the defendant claims he believed he should fear for his life and the life of his daughter. Perhaps his neighbors dealing drugs and the neighborhood he lived in gave him good reason to believe this.

After he fired, he then heard people yell police and he dropped his weapon and surrendered. Actions of a guilty man? A criminal?

That's the problem I have with this case.
12.13.2005 6:24pm
Kent Scheidegger (mail) (www):
Nicole, my comment specified that the intruder was unknown to the occupant and was breaking in. Unexpected entry by a family member is a different situation.
12.13.2005 6:29pm
OrinKerr:
Michael, Greedy,

As I see it, the issue of whether the police had the wrong apartment is relevant because it goes to the trustworthiness of the defendant's testimony that he was just acting to protect himself and his daughter. That's the crux of the case: Was he acting in self-defense, or not? A drug dealer sitting on a pile of drugs is much more likely to shoot a cop knowingly to avoid being arrested rather than in self defense; in contrast, a random guy who is just minding his own business at home is most likely acting in self-defense, even if imperfect self-defense. To be clear, though, the key issue is whether the defendant was knowingly involved in wrondgoing, and thus had a motive to shoot a police officer, not whether the police had a valid warrant to search the house. That is, the key question for the purpose of substantive criminal law is the perspective of the defendant, not the perspective of the police.
12.13.2005 6:37pm
EGrim (mail):
AppSocRes (referencing your comment posted 2:52):

Paraphrasing part of your second paragraph:

Breaking into someone's home in the middle of the night Owning or wielding a gun creates a heavy responsibility to make sure that one has the right home, and if one is a police officer executing a no-knock warrant, to be wearing appropriate protective equipment (helmet, shield, vest, etc.). Which leads me to the thought, as a long-time gun owner, that the people who are defending this irresponsible policeman gun owner are in all likelihood, mostly opposed to responsible people owning and using guns.

When the shoe is on the other foot, the conclusion follows just as strongly.

I wonder if this is an error in argumentation, ind if so, whether there is a neme for it.
12.13.2005 6:42pm
EGrim (mail):
My last sentence should, of course, have read:

I wonder if this is an error in argumentation, and if so, whether there is a name for it.
12.13.2005 6:44pm
Joseph Christensen (mail):
Kent, you say that the Baldus study did not account for the strength of the prosecution's case. I am interested in how the strength of the prosecutions case would be statistically quantified. Don't the factors in the Baldus study such as 'Defendant admitted guilt and no defense asserted' or 'Multiple shots' or 'Victim bedridden' or 'Victim was tortured physically' etc (there are over 200) as a whole represent the strength of the prosecution's case?
12.13.2005 7:47pm
cfw (mail):
I would be interested in seeing who did the defense work, what he/she argued, and what instructions the jury received.

Was there anything in the jury instructions on the lesser included offense of manslaughter?

I agree with the suggestions that announcement of "police" could have been (a) indecipherable over sounds of the door breaking in and/or (b) missed because the shooter was still asleep or just waking up.

Did counsel offer any expert testimony about how long it takes to "turn on the ears" when going from deep sleep to wakefulness? Was there any expert testimony about what one might have missed hearing (and then believing, and caring about) while the door was broken in?

A capital case might make sense if the DA had evidence of lying in wait, but I have seen none. Was DA treating this as capital as a favor to the police?

"What if instead of a lethal injection, we administer a coma-inducing injection?"

When? The fly in the ointment is the innocent (for purposes of argument) prisoner is supposed to be available to assist his/her counsel with the appeal, request for writ, etc. I suppose this could be "worked around" (if coma could be started and stopped), but dealing with a client in and out of comas sounds complicated.

Also, I'm not sure it would placate those relatives of the deceased who are hell-bent on having the prisoner executed.

"Besides, normal prison costs would be greatly reduced since the prisoners would simply be occupying a bed somewhere."

Maybe true. Might offer it as an option for a prisoner who wants the appeals processed but has nothing to add to the debate.

"Are we really better off with Tookie Williams dead? Yes. I didn't want him writing any more children's books and dedicating them to convicted murderers. I don't want to hear his proclamations of innocence anymore. Good riddance."

Is this how state-sponsored killing makes us treat life as something less than sacred? Shouldn't we have something more meaningful or non-emotional to offer than this?

That said, I thought TW had a weak and poorly-reasoned clemency request. The innocence idea did not move me at all; nor did the idea that he is best saved because he wrote some books.

The argument I did not see, which is probably the fault of TW and not that of his lawyers, is that TW grew up in South Central LA, from a broken home, with no decent support or role models. He had from the start a greater chance of going to prison than to college. Find me a fifth grader in school in Compton, with little or no family support, and I will show you a disaster waiting to happen. Not in all cases, and not even in most cases, but in a significant percentage of the cases, that black fellow will naturally turn to a life of serious crime as part of his survival mechanism.

Does that excuse? No, but it mitigates and extenuates enough in my mind to say let the arrogant, high IQ, narcissistic TW (RIP) spend the rest of his days in prison.

Not recognizing the criminogentic part of our society, and how it tends to malform and ruin folks like TW, is the mistake made by AS.
12.13.2005 8:03pm
Kent Scheidegger (mail) (www):
Joseph, see McCleskey v. Zant, 580 F. Supp. 338, 368 (ND Ga. 1984). I haven't done a detailed analysis of the Baldus study myself.
12.13.2005 8:16pm
Brett Bellmore (mail):
Egrim, I'm not sure if there's a formal name for the logical error involved in conflating passive ownership of a piece of property with agressive invasion of somebody's home. But if you come across one, be sure to let us know.
12.13.2005 8:36pm
Dan Hamilton:
Me "Dynamic entry by definition is excessive force that's the whole idea."

Ofc. Krupke "No it's not. The specific circumstances of a specific case determine what is "excessive" and what is not."

In a way you are right. Every case must be judged.

BUT you are mostly WRONG. Why? By the very definition of what a "Dynamic Entry" is. It is the use of OVERWHELMING force. To be so FAST, so Overpowering that the bad guys don't have TIME to do anything, and are to scared to do anything. It can ONLY be justified against Very Bad Guys.

If "Dynamic Entry" is used against honest John Q. Citizen it is ALWAYS massive excessive force. It can't be anything else. Used against felon Martin X. Convict you might (maybe) be able to argue it was not excessive force.

As the Texas Rangers told the Congress critters. They would have walked up to the door, knocked on it, and served the Branch Dividians the Search Warrant. It is unlikely they would have had any problems. If the people don't cower in fear and freeze "Dynamic Entry" can get you in a Heap of trouble.
12.13.2005 8:44pm
TL:
The interesting thing about all this is: If I were a juror, I would want to know only one thing--the forbidden Rule 404 character reference. In my opinion, if this individual has a past devoid of criminal activity, there is your reasonable doubt. What person without a past crim record would really (I mean REALLY, truly) commit capital murder in this situation??
12.13.2005 10:20pm
Another Jack (mail):
Seems hard to imagine waking from a dead sleep, doors crashing in, people screaming, and the occupant making any sense of it, let alone "POLICE," other than he is in great danger. The tactic depends on total confusion. Is the tactic justifiable in drug cases considering the consequences of inevitable mistakes on both sides of the door?
12.13.2005 10:26pm
Fishbane (mail):
Orin: As I see it, the issue of whether the police had the wrong apartment is relevant because it goes to the trustworthiness of the defendant's testimony that he was just acting to protect himself and his daughter. That's the crux of the case: Was he acting in self-defense, or not? A drug dealer sitting on a pile of drugs is much more likely to shoot a cop knowingly to avoid being arrested rather than in self defense; in contrast, a random guy who is just minding his own business at home is most likely acting in self-defense, even if imperfect self-defense.

I don't see any way around it, but I find it troubling that findings of fact about an (unfortunate event, breach of the peace), that the rest of society is supposed to take as such, can turn on events that had nothing to do with the actual event. To some extent, it appears to be allowing unrelated evidence in: if the cops mistakenly bust down my door,I have a few pill I shouldn't, and something unfortunate happens, I suddenly become "more guilty", even if those pills have nothing to do with anything.

To be clear, though, the key issue is whether the defendant was knowingly involved in wrondgoing, and thus had a motive to shoot a police officer, not whether the police had a valid warrant to search the house. That is, the key question for the purpose of substantive criminal law is the perspective of the defendant, not the perspective of the police.

And your example above of "a pile of drugs" is a fine example of the reasoning that goes into these sorts of decisions in general. But for this case, it appears that a tiny amount of pot was found, and there are even questions about that came to be.

So I guess my question is, assuming those are the facts, how much more intent does a tiny amount of drugs convey to a court than if there were none? What if he harbored illegal pets instead - would there be a difference, due to the nature of the warrant, or is there a general "guilty mind" inference?
12.13.2005 10:40pm
Conrad (mail):
Nicole:

You miss the point. Actually, you miss several points. First, the Mississippi statute you cite reads, in relevant part:

(1) The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:


When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;


When persons unknown attempt to forcibly enter one's occupied dwelling, without identifying themselves, at night, in a neighborhood prone to drug dealing, I'd say that gives the occupant reasonable grounds to believe that a felony (burglary, home invasion, etc) and personal injury is imminent.

Second, Maye received the death penalty. Even if his fears were determined to be unjustified and his assumption unreasonable, that sounds like a case of negligent homicide / manslaughter to me. Especially in light of the alleged contributing behavior of the police. At worst it's a case of murder with mitigating circumstances. You sure as hell don't execute someone for making a mistake about the legal niceties of permissable force when suddenly awoken to violent unknown intruders.

Hell, on this very site we can't agree as to Maye's justification, and we're generally legally savy, have time to reflect and research and aren't faced with fear of physical harm. Unfortuntely, Maye didn't have the option of runing to his computer, and googling the Mississippi self-defence statute. And, even if he did, as you have demonstrated, even that's no guarantee of getting it right.

At common law, burglary was a captial crime and was limited to illegal entry into an occupied dwelling. This was because of the high risk of violent confrontation that such entry created. Except in exceptional circumstances, there should be a strict requirement that police identify themselves before attempting such entry. The alleged failure of the police to do so created an inherently dangerous and stressful situation. Now the state wants to kill the person involuntarily thrust into that situation because of a decision he made in the heat of the moment.
12.13.2005 10:50pm
Leland (mail):
The Branch Dividian raid has always struck me as a complete violation of the Bill of Rights. As I understood it, the raid was conducted under the premise that the Dividians violated federal fire arm laws, which in themself seem a violation of the 2nd Amendment. The raid was conducted with officers yelling "ATF" while entering a 2nd story window with weapons drawn. I seem to recall the 4th Amendment mentioning the need of a warrant and nothing about yelling "I'm the government here to infringe on your 2nd Amendment protections."

Bottom line, if your an officer entering my home, it will occur without altercation after I have read the warrant to search the premise. Legal presidence might state otherwise, but my home is protected by my reading of the Constitution. I hope Corey Maye is protected by that document as well.
12.13.2005 11:15pm
Daniel12 (mail):
There are several things about this case that are troubling.

There is no doubt that a policeman, and probably a good one died, and the life of another, perhaps entirely innocent person is in jeopardy. All of this is as a result of a no knock warrant served in the middle of the night.

I was taught as a child that a no knock break in to a home in the middle of the night was an act of terror, of government sponsored terror, of the kind associated with Nazi Germany and the Soviet Union. That such things are permitted in this country is a terrible scandal, and is what created this whole tragedy. The legislation that permits this and the legislators who passed that legislation are the real criminals in this case.

It seems to me that the guilt or innocence of Mr. Maye depends entirely on his state of mind when he shot the officer. If it had not registered with him that he was shooting a policeman, then he is innocent. If he knew he was shooting a policeman then he is guilty.

My problem with the verdict is that I see no way that I or the jury can delve into the mind of the defendant to resolve this question: did he know who he was shooting? Nor do I see any evidence of any kind that could possibly establish the state of his mind at the moment of shooting beyond reasonable doubt. So I cannot imagine evidence that could have convinced a jury to convict.

Moreover, the actual behavior of Mr. Maye after the shooting does not seem consistent with him knowingly shooting the policeman. Apparently he threw down his gun and raised his hands. (That the other policemen did not shoot him corroborates this statement) If his intent was to shoot policemen, why did he not shoot at them as well?

It has been asserted that the dead policeman was not armed. Most policemen I know carry arms when on duty. I find it difficult to believe that a policeman accustomed to carrying arms would leave his weapon at home when going on a midnight raid on a suspected drug dealer. That he had not drawn his weapon is more plausible, but suggests that he was shot while breaking down the door, which actually supports the notion that Mr. Maye had not time to hear that he was a police officer rather than a thug.
I
t has been asserted by some here that the fact that a warrant was issued against an unknown resident of his house implies that there was evidence of his guilt of some sort of crime, but that evidence died with the policeman. The warrant was issued by a judge, and that judge must be in possession of the information that convinced him to issue it. This did not die with the policeman, and should be available. Was it brought out at the trial?

A potential difficulty with a fair trial in a small town is that the dead policeman was not only the son of the chief of police, but was probably known to most of the members of the jury. If he was a nice and popular guy, they may well have been convinced that his death was a tragedy and that somebody should pay for it. And who else but the shooter? If he was not a nice guy, and his father is a feared figure, then they might well be afraid of letting the shooter off. Thus the shooting death of a policeman who is the son of the chief of police should always be tried in a different venue from the home town, and especially so if his family is popular and highly respected.

Finally, the statement that no appeal has been filed in this case is alarming, and suggestive of the possibility that his defense has been less than competent.
12.14.2005 2:20am
A.S.:
First, thanks to Nicole for posting the actual Mississippi statute governing the case. It is so much better to work with the actual low rather than what you think the law maybe is or should be.

Second, after reading the text of the actual law posted by Nicole and the description of the facts in the link, I think the jury got it right. Again, here's the text of the justification:

When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;

(emphasis added)

Note that there is no "reasonable ground" qualifier in the highlighted portion. Query: does this then mean that it is irrelevant whether Maye reasonably believed there was imminent danger of great harm? I think so! The only question for the jury is whether there actually was imminent danger of great harm - not whether Maye believed himself to be in imminent danger of great harm. And given the warrant and holstered guns, it turns out that Maye was not in such imminent danger.

Am I reading the statute wrong? (Or is it a bad statute?)
12.14.2005 3:57am
Tom (www):
Hmmm, so the jury, applying the applicable principles of self-defense law, believes that the defendant unjustifiably shot and killed an officer lawfully engaged in his duties, who did not even have his gun drawn.

Where, in all the whining about this case, is the oft-repeated mantra about the sanctity of the jury and how they're a bulwark of protection against the government... or does that only apply when they acquit, but not when they rule differently than you would have based on your media-fed view of the case?

Remember, the government had the burden of proof beyond a reasonable doubt, both as to guilt and punishment, and convinced a jury on both issues. Unless you've read a transcript, or saw the demeanor of the witnesses so as to judge their respective credibility, the default ought to be that the jury made the right decision.
12.14.2005 8:55am
Aultimer:

Anthony Leonson:
The defendant was not a criminal. The police were looking for a drug dealer, but only found a small bag of marijuana and 3 smoked cigars that they thought had marijuana.


You've contradicted yourself in two sentences. If you meant to say that the defendant wasn't the criminal they were looking for, you may be right, but it isn't relevant to his reasonable belief that the intruders were LE or bad guys.
12.14.2005 9:14am
Salaryman (mail):
A.S.: the statute justifies deadly force if the defendant had reasonable grounds to apprehend EITHER (a) a design to commit a felony, or (b) a design to do great personal injury AND there is an imminent danger of either (a) or (b) occurring. Forgetting completely whether the facts would justify a reasonable apprehension of imminent great personal injury, it does seem that having your home invaded in the middle of the night by persons who haven't identified themselves as police raises a reasonable apprehension of a design to commit a felony (theft, assault, battery, kidnapping, rape and murder all being options) and an imminent danger of that design being accomplished.

I'd be dismayed to learn that I live in a society where, when unknown persons break down my door in the middle of the night, I have no recourse to deadly force to protect myself. (I say this as a NON-gun owner.) Of course, they COULD be there to commit a misdemeanor, or to notify me that I've won a sweepstakes, they could be drunken college kids who've mistaken my place for theirs, or they could be police who've just forgotten to announce themselves. But none of these possibilities, in my view, suffice to erase the reasonableness of my assumption that people who break into your home in the middle of the night for no apparent good reason are there for felonious purposes.
12.14.2005 9:44am
Salaryman (mail):
A.S.: the statute justifies deadly force if the defendant had reasonable grounds to apprehend EITHER (a) a design to commit a felony, or (b) a design to do great personal injury AND there is an imminent danger of either (a) or (b) occurring. Forgetting completely whether the facts would justify a reasonable apprehension of imminent great personal injury, it does seem that having your home invaded in the middle of the night by persons who haven't identified themselves as police raises a reasonable apprehension of a design to commit a felony (theft, assault, battery, kidnapping, rape and murder all being options) and an imminent danger of that design being accomplished.

I'd be dismayed to learn that I live in a society where, when unknown persons break down my door in the middle of the night, I have no recourse to deadly force to protect myself. (I say this as a NON-gun owner.) Of course, they COULD be there to commit a misdemeanor, or to notify me that I've won a sweepstakes, they could be drunken college kids who've mistaken my place for theirs, or they could be police who've just forgotten to announce themselves. But none of these possibilities, in my view, suffice to erase the reasonableness of my assumption that people who break into your home in the middle of the night for no apparent good reason are there for felonious purposes.
12.14.2005 9:44am
Salaryman (mail):
Oh, and I suppose I should say that I don't think the justification for my response could possibly be conditioned on something I couldn't possibly know at the time -- whether in fact they are there to commit a felony or, e.g., to notify me of my good fortune in a sweepstakes, since that was AS's main question. If that were the rule, why bother the jury with whether my beliefs about their actions were reasonable, since I'd be guilty regardless if my reasonable belief turned out to be incorrect. Somehow I forgot about adding that in before I clicked.
12.14.2005 9:51am
Salaryman (mail):
Oh, and I suppose I should say that I don't think the justification for my response could possibly be conditioned on something I couldn't possibly know at the time -- whether in fact they are there to commit a felony or, e.g., to notify me of my good fortune in a sweepstakes, since that was AS's main question. If that were the rule, why bother the jury with whether my beliefs about their actions were reasonable, since I'd be guilty regardless if my reasonable belief turned out to be incorrect. Somehow I forgot about adding that in before I clicked.
12.14.2005 9:52am
A.S.:
I didn't read the statute that way, Salaryman.

I read it as saying justification requires (a) the defendant has reasonable grounds to believe there is a design to either (i) commit a felony or (ii) to do some great personal injury to the defendant or another person, AND (b) there ACTUALLY WAS (not merely that the defendant had reasonable grounds to believe) imminent danger of such design being accomplished.

Now perhaps that's a strange way of looking at it, but I think that's what the statute literally says.
12.14.2005 9:55am
phred:
My question is why a search of an apartment occupants unknown was not a knock-and-announce type of search. Was there good cause for less notice?

Here's a solution: if the police want to strain 4th amendment notice requirements, they take the risk. That's right: it's a dangerous job, they know it going in, and if they want to bust down doors in the middle of the night without genuinely knocking, announcing, and allowing the occupants to examine the instrument (which is of course a necessity in drug cases - assuming those are legitimate in the first place), they take the risk of a slug. We buy them kevlar body suits if we have too; the state should bear the expense rather than hoping that prosecuting people like Maye will deter.
12.14.2005 10:21am
Joshua (mail):
Daniel12 wrote:
A potential difficulty with a fair trial in a small town is that the dead policeman was not only the son of the chief of police, but was probably known to most of the members of the jury. If he was a nice and popular guy, they may well have been convinced that his death was a tragedy and that somebody should pay for it. And who else but the shooter? If he was not a nice guy, and his father is a feared figure, then they might well be afraid of letting the shooter off. Thus the shooting death of a policeman who is the son of the chief of police should always be tried in a different venue from the home town, and especially so if his family is popular and highly respected.
Somehow I doubt a change of venue would matter much in this respect. A dead cop, much less one from a long family line of cops, is likely to engender some degree of extra sympathy from a jury no matter where it is. And that's not even the defense's biggest disadvantage.

Mr. Maye's role in the shooting not being in dispute, his defense had the unenviable task of convincing the jury that his actions did not rise to the level of a crime, much less a capital one. To have a reasonable shot at success, the defense would have to have a jury that is open-minded enough not to regard the killing of a law enforcement officer while that officer is carrying out his duties in good faith as an open-and-shut, prima facie crime regardless of the circumstances. I submit that it would be a daunting task to find twelve such people in any given jurisdiction in the country, much less in a law-and-order Southern state like Mississippi. A change of venue might have increased the likelihood of success from around 00.01% to around, say, the 5-10% range, but that's still a steep uphill battle.
12.14.2005 10:34am
Daniel12 (mail):
The Mississippi :aw quoted above is wonderfully ambiguous. It seems to depend on how the run on sentence it contains is parsed. Here it is:
1) The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:


When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;

The issue is: should it be parsed as

1) The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:


When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend (a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;)

or

1) The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:


When committed in the lawful defense of one's own person or any other human being, (where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury,) and (there shall be imminent danger of such design being accomplished;)

In the former case an apprehension of imminent danger is enough to create self defense, while in the latter, actual imminent danger is required.

My guess is that the law was meant to require that the danger of the felony had to be imminent and not that it had to be real, which would favor the first interpretation.
12.14.2005 11:01am
gbrown:
The existence of a valid search warrant was undoubtedly relevant on two grounds: (1) most death penalty statutes authorize imposition of the death penalty for killing a police officer in the "lawful discharge" of official duties; (2) most states authorize a citizen to defend against some forms of "unlawful" police conduct. Whether or not there was a valiid search warrant permitting entry into the defendant's home seem to determine, at least in large part, the lawfullness of the officers conduct. The lawfullness of the officers conduct should not be the sole determinant of the matter of self defense in my opinion, but we seem to be a bit light on facts at this point.
12.14.2005 11:08am
Wince and Nod (mail) (www):
Well I'd say the jury did way better than the prosecutor and judge. There is no way this man should have been charged with first degree murder, given the facts of the case as stated.

Yours,
Wince
12.14.2005 11:35am
Clint:
Daniel12-

The fact that "there shall be" is repeated makes your second variant the only possible reading of the grammar.

However, there's more persuasive out: "such design" refers back to the first part. So the question is whether the two part test is:
A. (1) reasonable apprehension of danger
(2) immenence of such (reasonably apprehended danger)
or
B. (1) reasonable apprehension of danger
(2) immenence of "such design" and actual existence of that design

The second reading seems rather more forced than the first. It would mean that the sole purpose of the first clause would be to allow the death penalty to apply to a defendant who actually acted in self defense, but even so was unable to create reasonable doubt that he might have had a reasonable apprehension of that actually true fact.
12.14.2005 11:39am
Joshua (mail):
A follow-up regarding Justin's and my comments on change of venue: Per The Agitator's latest post, it seems that there actually was a change of venue in the trial - but apparently thanks to bungling on the part of Maye's defense team, the venue ultimately chosen turned out to be even less advantageous to Maye than the original one!
12.14.2005 11:43am
Conrad (mail):
A.S.:

Of course you are reading the statute wrong, and yes it is awkwardly drafted.

To apply your reading violates a basic premis of stutory interpretation.

If, as you suggest, the second clause requires that the threat actually be real, that renders the first clause, that the defendant have a 'reasonable apprehension' null and void.

Anytime the threat is real, the defendant's apprehension of that threat will of course have been reasonable.

However, under your reading, if the threat is not real, then the fact that the defendant's apprehension was reasonable becomes irrelevant.

As a result, the second clause renders the first entirely superfluous.

Furthermore, the determinative factor in a self-defense case MUST be the reasonable belief of the defendant. Otherwise, anytime anyone ever used deadly force to defend himslef, no matter how reasonable his belief that the threat was real, he would be subject to prosecution if he turned out to be wrong.

For example, imagine that you awake to find a masdek intruder standing over your bed, brandishing a knife and declaring that he is going to kill you and rape your wife. You retrieve your gun from the bedside table and fatally shoot him.

It turns out that you were actually in no danger. The intruder was, in fact, only an actor hired by your neighbor as an ill-conceived practical joke.

Sorry, A..S, but as you read the statute, you're guilty of murder because there was not real threat. Your reasonable fear is irrelevant.

If the law says that then, to quote Mr. Bumble, the law is an ass. When a particular interpretation reaches an absurd result, it is a well established rule of statutory construction that one should generally reject such an reading on the grounds that it could not have been what the drafters intended. See, e.g., Bruce v. Gregory, 65 Cal.2d 666, 673 (1967).
12.14.2005 12:08pm
legitprop (mail):
I agree with both Clint and Daniel12. The reference to "design" in the latter portion of the statute is referring to the "reasonably perceived design" that must be proven under the earlier clause. I think Daniel12 is correct to note that the operative term in the latter clause is "imminent," because even if someone reasonably perceives that they are faced with a felony, you don't want to excuse their resort to deadly force unless they reasonably believed that the felony was imminent, i.e., it was about to occur right then. With all that said, the statute is not a model of clarity, and linguistically/literally A.S.'s reading has some merit. However, when faced with two reasonable interpretations, I would generally go with the one that does not lead to absurd results, which leads me to think that Clint and Daniel12 have the better of the argument.
12.14.2005 12:10pm
Lab:
Two more lives ruined by the "war on drugs".

And this happened in the land of liberty. heh.
12.14.2005 12:18pm
Conrad (mail):
A.S.:

Your reading also effectively makes the right of self defense illusory.

Faced with a violent home invasion from which I cannot escape, I must choose between (a) using deadly force or (b) not using deadly force.

But, as you read the law, if I choose (a) and I am wrong, no matter how reasonable my fear, the state can put me to death. And, if I choose (b) and I am wrong, then the intruders can kill me.

The legislature simply could not have intended that it be incumbant upon a citizen, faced with what reasonable appears to be a life threatening assault, to correctly guess the unspoken subjective intentions of the perpetrator, and to be subject to possible execution should the citizen guess wrong.
12.14.2005 12:33pm
A.S.:
Yes, you folks are almost certainly right. I wonder, though, how the jury looked at the question. I'd be interested in seeing their instructions.
12.14.2005 1:05pm
Matt22191 (mail):
A.S. (and others):

"Query: does this then mean that it is irrelevant whether Maye reasonably believed there was imminent danger of great harm? I think so! The only question for the jury is whether there actually was imminent danger of great harm - not whether Maye believed himself to be in imminent danger of great harm. And given the warrant and holstered guns, it turns out that Maye was not in such imminent danger."

Scott v. State, 203 Miss. 349, 353-54 (1948):

At the common law, to justify the slaying of another in self-defense, there must have been actual danger of loss of life or suffering great bodily harm. Dyson v. State, 26 Miss. 362, 4 Cush. 362, 1 Morr.St.Cas. 710. But now, the danger need not be actual, but only reasonably apparent and imminent. As we held in Evans v. State, 44 Miss. 762, the term ‘apparent danger,’ as applied in cases of homicide, means such overt demonstration, by conduct and acts, of a design to take life or do some great personal injury, as would make the killing reasonably apparently necessary to self-preservation or to escape great bodily harm. Section 2218(f), Code 1942, makes homicide justifiable ‘When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.’ The phrase ‘reasonable ground to apprehend,’ used in the statute, implies apparent danger. Dillon v. State, Miss., 18 So.2d 457.

It was not required of appellant to prove that he acted in justifiable self-defense, but only that he raise a reasonable doubt of his guilt of the charge against him, unjustifiable homicide. The law authorizes action on reasonable appearances, Scott v. State, 56 Miss. 287; and the danger may be either real or apparent, Blalack v. State, 79 Miss. 517, 31 So. 105; Ingram v. State, 62 Miss. 142; Godwin v. State, 73 Miss. 873, 19 So. 712.


Still good law in Mississippi. (You'll get a yellow flag in Westlaw, but it doesn't have to do with this issue.)
12.14.2005 1:24pm
steveh2 (mail):
The discussion has been focusing almost exclusively on the guilt-innocence question, but what about the jury's decision to choose death?

Does anyone know if any facts were brought out about the defendant that would suggest a reason why he was given death instead of life imprisonment for shooting someone who busted into his own house? The way I have read it, he had no prior criminal record, but was something else amiss? Or was it just the fact that he was black?

I mean, I hate to play the "racism" card, but does ANYONE here think that there is ANY chance the jury would have imposed death on a white man with a child at home and no criminal record?
12.14.2005 1:53pm
David Matthews (mail):
"it does seem that having your home invaded in the middle of the night by persons who haven't identified themselves as police raises a reasonable apprehension of a design to commit a felony"

Especially if you have reason to believe that your neighbor may be selling drugs. A few years ago I had the misfortune of living next to characters most likely involved in selling drugs, and had my door been kicked down in the middle of the night, regardless of how the intruders identified or didn't identify themselves, I might well have shot first and asked questions later.

And this could also explain why Mr. Maye borrowed a (what turned out to be stolen) gun from a friend. ("Man, I think my new landlord's selling drugs." "Hey, take this. You never know when you might need it.")

As regards the "traces of marijuana," while you wouldn't find a bag in my house, I'm guessing that if you searched all my gatefold LPs, you might come up with a trace or two stuck in the creases. Would this be enough to, after the fact, assert that a warrant was, well, warranted? It certainly should not be enough to warrant a warrant, before the fact. And in Maye's case, it seems highly unlikely that he would have knowingly shot a police officer to try to avoid being busted for what was at most a misdemeanor.

My other question is, since the prosecutor intimated that quite possibly Maye had time to flush a bunch of drugs, shouldn't they have tried to find the possibly flushed drugs? One flush usually doesn't clear everything out of a house's plumbing (at least it never does on CSI....)
12.14.2005 2:05pm
amn (mail):
I return to the previous request for a narrative that explains why Maye would: wake up in the middle of the night, decide to shoot one cop out of several, then lay down his gun without the other officers firing their weapons.

At worst Maye is guilty of imperfect self-defense, which (depending on the jurisdiction) is usually manslaughter. Most likely Maye was scared out of his mind and fired at the people coming through his daughter's door in the middle of the night. Terrible police work and someone died as a result. Even if there were drugs in the apartment, the risk associated with this type of search can't possibly warrant it.
12.14.2005 2:48pm
Visitor Again:
The defendant has had his day in court at his trial--and that is the only evidentiary hearing he is entitled to as a matter of right under our system of justice. If all the questions we readers have are not answered in the record that already has been established at his trial, too bad for the defendant(unless some court holds there was inadequate assistance of counsel, which in itself is extremely difficult to establish).

I'm looking forward to--fearing, actually--a Mississippi Supreme Court opinion indulging in every reasonable factual inference in favor of the judgment below and then federal habeas corpus review giving deference to all reasonable state court factual findings.
12.14.2005 3:00pm
Nicole Black (mail) (www):
I agree that the statute is poorly written. And, we don't have the benefit of practicing law in Mississippi, so we're not familiar with the statute, the jury instructions,etc.

Additionally, we weren't jurors at this trial, so we're in no position to second guess the jurors' decision. There were issues of fact which they had to assess, including whether the police identified themselves. Many posts above allege that the officers did not identify themselves, but there was apparently testimony that they did.

If the jurors believed that the officers did identify themselves and that Mayes heard them, then according to the MI statute re: capitol crimes, by shooting a police officer, he committed a capital offense.

The next step for the jury would be to consider the MS affirmative defense of self defense as set forth above in my prior post. It appears to be poorly drafted, and we would need to review the trial transcript in order to see how the jurors were instructed on that issue. The language of the statute is not as important on appeal as would be the actual jury instructions in this case. And, we'd have to review relevant caselaw on any number of issues.

So, making arguments regarding the facts and law in this case seems somewhat pointless to me, given that we're collectively lacking the information necessary to debate this in an intelligent and knowledgeable fashion.
12.14.2005 4:01pm
Anthony Leonson (mail):
Aultimer wrote:

You've contradicted yourself in two sentences. If you meant to say that the defendant wasn't the criminal they were looking for, you may be right, but it isn't relevant to his reasonable belief that the intruders were LE or bad guys.


He had no criminal record. Not even a misdemeanor.

As for the drugs found in his place, there is a possible issue with the evidence found in that the evidence report for the neighbors duplex was filled out and turned in the night before, but the evidence report for Cory Maye's half of the duplex wasn't filled out until 6am the next morning (With additional times scratched out on the form).

Regardless, the possession of trace amounts of marijuana would not be motive to knowingly murder a police officer, nor would it be relevant to the discussion of the perp's innocence or guilt.
12.14.2005 4:44pm
Matt22191 (mail):
Nicole,

As to the reason the statute is poorly drafted, it's because the basic statute dates back at least to 1906. It reads strangely to us because it's old. But that doesn't mean we can't figure out what it means: We have nearly one hundred years of case law gloss on the statute.

That said, I largely agree with you: Maye has had his day in court, and a jury with access to far more facts than we have has made its decision. Generally speaking, the jury's factual findings are sacrosanct. We can speculate all we like about whether the jury's factual findings were correct -- bearing in mind that we weren't present at the trial and don't have a transcript (and even a transcript is a poor substitute for actually hearing and seeing the testimony) -- but our agreement or disagreement doesn't matter. The jury found what it found, and as long as there was some minimal quantum of evidence to support its findings, no court will disturb them. (Of course errors of law are another matter. Perhaps the trial judge erroneously refused to let in potentially exculpatory evidence, or allowed in unduly prejudicial evidence, or wrongly instructed the jury on the law. But we don't know anything about those issues right now.)

However, it's not pointless to ask factual questions about the case. Juries sometimes give the wrong result, and this case is one that, on its face, seems close enough to the line to worry about. While appellate courts for the most part have to pretend that juries never make mistakes, the executive -- who wields the clemency power -- doesn't. If there are reasons to think that the Maye jury may have gotten it wrong, they're worth airing. Sometimes the system works just as it's designed to work and still produces a bad result. We should care about those cases, and try to correct the bad results.
12.14.2005 4:49pm
Seamus (mail):

Additionally, we weren't jurors at this trial, so we're in no position to second guess the jurors' decision.



Of course not. Similarly, we have no business second-guessing the decisions of the juries to acquit O.J. Simpson or to convict Leo Frank. After all, they saw the evidence and we didn't.
12.14.2005 6:35pm
Nicole Black (mail) (www):

Of course not. Similarly, we have no business second-guessing the decisions of the juries to acquit O.J. Simpson or to convict Leo Frank. After all, they saw the evidence and we didn't.


Seamus, I realize that you were being sarcastic, but I completely agree with that statement. There's a reason that we have trials, as opposed to a finder of fact reviewing transcripts of testimony or the like: unless you were there and heard all of the evidence, you're in no position to make judgments as to the conclusions drawn from that evidence.

We can debate general issues all that we'd like (such as "one should be allowed to shoot at an intruder in one's home"), but I find it a bit absurd and pointless to debate the "facts" in this case given that the "evidence" has been gleaned from any number of hearsay (or double and triple hearsay) sources.
12.14.2005 10:14pm
Conrad (mail):
Nicole:

Respectfully, your call for the blind acceptance of jury verdicts is, at best, very naive and, at worst, disgraceful. To declare that one should automatically accept the findings of a jury is an invitation to injustice.

Juries do damned fool and sometimes wicked things from time to time. God knows that's true in Mississippi (and I say that with regret and from experience, having been born and raised there).

Mississippi juries acquited Byron De La Beckwith, the murderers of Emmitt Till and the murderers of civil rights workers Chaney, Goodman &Schwerner. By your reasoning, the nation should have accepted rather than decried those verdicts and the federal government was wrong to second guess them and seek subsequent federal prosecutions on the same facts.

Injustice doesn't get a free pass just because it was perpetrated by 12 folks in a courtroom rather than a mob in the street.

Is Maye's case an injustice? I don't know. But the reported facts raise serious questions and people not only have a right but a duty to raise questions regarding the outcome.
12.14.2005 11:11pm
Thorley Winston (mail) (www):
Mississippi juries acquited Byron De La Beckwith, the murderers of Emmitt Till and the murderers of civil rights workers Chaney, Goodman &Schwerner. By your reasoning, the nation should have accepted rather than decried those verdicts and the federal government was wrong to second guess them and seek subsequent federal prosecutions on the same facts.


Well if the Constitution's prohibition on double jeopardy has any meaning, then yes the federal government was most certainly wrong to try to them a second time based on the same set of facts.

As far as a private citizen questioning the verdict, that's certainly his or her perrogative, but barring any evidence of misconduct, I have to agree with the previous posters that the jury should probably get the benefit of the doubt.
12.15.2005 1:36am
Conrad (mail):
I would be very curious to know if the same people demanding deference to juries that bring in questionable criminal convictions are equally deferential to civil juries bringing shocking awards of damages.

I suspect that in some cases they are not.
12.15.2005 4:19am
Defending the Indefensible:
Suppose burglars break into a home and yell "POLICE!" to freeze the occupants. Dynamic entry is IMHO *never* justified unless to intercept a crime in progress. The "War on Drugs" has so poisoned our society that we're afraid that the failure to violate the sanctity of the home might allow evidence to be flushed, and choosing to sacrifice the Fourth Amendment for the sake of this principle.
12.15.2005 5:43am
Nicole Black (mail) (www):
Conrad, I am by no means saying that all jury verdicts should not be examined. As a former PD, I'm really quite liberal as to these types of issues. I have no problem with someone reviewing the *record* on appeal and challenging the jury's findings to the fullest extent available under the law.

But, having handled numerous criminal appeals, I can assure you that the factual information that those posting here are using to debate their position on this case is questionable at best, and most likely incorrect. Only after reviewing the record on appeal are you in a position to make an *informed* argument regarding the factual and legal issues.

You can make general arguments as much as you'd like re: hypothetical scenarios and general legal propositions, but in my opinion it's nearly impossible to make informed and cohesive arguments re: the jury's finding unless you've reviewed the record on appeal.
12.15.2005 8:46am
Oleg Volk (mail) (www):
On a similar topic...

I wish I was elsewhere
I wish I was else-when
Than after the Patriot Act
In a lonely final stand

The night was like any other
My wife and son were in bed
When I awoke from slumber
And walked barefoot to the den

I didn't turn on any lights
Because the house was mine
I knew every turn and crevice
Could move like a cat in the dark

I wish I was elsewhere
I wish I was else-when
Than remembering the moments
After the door was rammed

I hear glass break upstairs
And then concussion grenades
Lit up the bedrooms above me
With roar fit to wake the dead

My wife and I had assumed
That intruders were just a gang
For we'd never done anything
To merit this pre-dawn raid

My wife and son tried to fight
The ninjas behind bright lights
But they were alone and stunned
I heard rattle of MP-fives

I wish I was elsewhere
I wish I was else-when
And not in my ruined home
With my family freshly dead

I thought to my self: "I am dreaming"
This gang just couldn't be Feds
But they acted just as one would expect
Shooting women and children dead

They hadn't found me yet
As I wasn't asleep in bed
My deer rifle was close by
What I wanted to say, it said

I retreated and so did they
Watching me from the outside
From the basement I still could tell
That they set my house on fire

In the choking smoke, I could just wait
Barefoot on cement basement floor
I wanted to take just one more of them
On my journey to the Beyond

I wish I was elsewhere
I wish I was else-when
Instead of this cold basement
At bay like a cornered rat

One more coal-scuttle helmet
Came up above barricade
And though my hands were shaky
I connected the one shot I made

The heat got beyond enduring
But the smoke, it got me first
And the house became a pyre
For me and two other corpses

The newspapers ran the story
That a three-person terrorist cell
Were taken down in pre-dawn hours
And that two brave policemen fell

I wish I was elsewhere
I wish I was else-when
Perhaps in the Sherwood Forest
With like-minded armed men

...I must mention that I never cheer for revenuers in movies, and consider films about the narcs to be as disgusting as movies that glorified Gestapo or NKVD.
12.15.2005 10:46am
Joshua (mail):
The discussion has been focusing almost exclusively on the guilt-innocence question, but what about the jury's decision to choose death?

Does anyone know if any facts were brought out about the defendant that would suggest a reason why he was given death instead of life imprisonment for shooting someone who busted into his own house? The way I have read it, he had no prior criminal record, but was something else amiss? Or was it just the fact that he was black?

I mean, I hate to play the "racism" card, but does ANYONE here think that there is ANY chance the jury would have imposed death on a white man with a child at home and no criminal record?


Just as with the verdict itself, I suspect the fact that the dead man in this case was a cop acting in good faith in the line of duty had more to do with the death sentence than did race. Again, it's a pretty safe bet that most Americans cannot (or at least could not, before this case came along) even countenance the idea that killing a law enforcement officer acting in good faith in the line of duty could ever be justified under any circumstances.

To the extent that the Maye jurors held that mindset, I would not have expected them to be any more lenient toward Maye in the penalty phase than I would expect them to be toward a cop-killer whose intent was clearly and genuinely malicious.
12.15.2005 1:51pm
mikem (mail):
Oops. The Agitator has admitted that his most prominent and malicious accusations against the police and prosecutors were false. It wasn't the wrong address. They did have a warrant for the property they searched, not just the one next door. It was NOT an all white jury. And so on. (But that doesn't change anything, of course. And it's not his fault that he relied on the word of Maye's defenders.) And now we are just snoozing for a few days waiting for the big name bloggers (*) to post corrections. Unless of course they really are no different than those arrogant dead tree journalists we have been pointing fingers at.
* Not referring to Orin Kerr, since he did not cite the incorrect info and at least took issue with possibilities rather than false "facts".
12.15.2005 7:53pm
Conrad (mail):
Nicole:

Yes, the jury, having sat throught the entire trial, had access to information tht you and I have not seen. So what? That in no way innumizes them from criticism and/or second guessing. I would much rather have the jury's decision questioned, probed and criticized, only to find out that it was right and Maye deserved to die, than I would have it held sacrosanct and have Maye executed unjustly.

And the argument you put forth--, deference based upon a jury's access to more information -- would logically apply to any body of governemnt. Don't question Bush's decision to go to war in Iraw, he had access to intelligence information you will never see. Congress hods hearings, consults experts and reviews staff reports before legislating, so don't question the latest spending bill. The State Dept is too cosy with the Saudis? Our diplomats are much better informed than us, trust them. Torture by the CIA? The CIA has access to untold secret intelligence we can't begin to imagine, so who are we to question.

My view, and the view enshrined in the First Amendment, is that criticism, questoning and second guessing is not only a fundamental right of a citizen, it is a huge benefit to the institution subjected to it. It tests it actions and keeps it honest. I want every single jury in America to know that, by God, what they do in that jury room is going to be examined and that they may catch hell if they get it horribly wrong or succumb to their prejudices.

No instrumentality of government should be above reproach. Indeed, the actions of every one of them, including juries, should be fair game. That's the biggest and best difference between the country where I was raised (the US) and the country where I now live (Vietnam), which is why I applaud the blogosphere inquiry into the Maye jury's actions, even if that inquiry turns out to be wholly unfounded and unfair.

Deference is for slaves, not free men.
12.15.2005 9:37pm
Anton Sherwood (www):
Michael Wade:
It seems fairly obvious that Mr. Maye's culpability is absolutely zero if the police do indeed break into the wrong home altogether. But that culpability is somewhat more than zero if the police had a valid search warrant (suggesting that Maye had committed some act or omission to generate probable cause) . . .
If his occupation were such as could be expected to draw police attention, you'd have a point - but "probable cause" can easily be based on information unavailable to the target. For an easy example, if someone who looks like me robs the neighborhood Kwik-E-Mart, then the police may well have probable cause to arrest me, but there's no way I can know that. In Maye's case, probable cause was that the apartment was adjacent to that of a suspect; if Smith was a dealer, Maye might know it, but is there a legal presumption that he did?! I don't know my neighbors' occupations.
12.17.2005 7:22pm