Vigilant Officer Pursues Bicyclist

It all started with the horrible crime of riding a bicycle on the sidewalk.  Did I mention that the bad guy wasn’t wearing a helmet.  Oh yeah, it was 9:43 pm.  Hopefully the rider wasn’t on his way home to brush his teeth and curl up with a nice magazine or book.  The vigilant officer, who must have had his x-ray vision goggles on, had different ideas.  He saw two civil infractions which ignited his fury.  He launched pursuit, drove his car over a curb, and discharged multiple stun gun/taser shots in the chase.  Mr. bike rider was eventually found with cocaine on his body and prosecuted to the full extent of the law.  Not exactly a Legion of Superheros episode.

Prosecutor in Bicyclist Case Misleads Jury

The attack on the bicyclist didn’t end on the street.  The prosecutor apparently was so scared that he or she might loose the case in court that they, according to the Court of Appeals, mistated the definition of “reasonable doubt” to the jury.

What that says is “a doubt for which a reason exists.” In order to find the defendant not guilty, you have to say, “I doubt the defendant is guilty and my reason is I believed his testimony that he just borrowed that . . . sweatshirt . . . and he didn’t know that the cocaine was in there, and he didn’t know what cocaine was.” And then you have to also believe that either he really didn’t see the lights and sirens or that Officer Thiry really forgot to turn them on and that a lot of those events didn’t really happen or more events that didn’t.  To be able to find reason to doubt, you have to fill in the blank, that’s your job.

There’s a portion of the “reasonable doubt” instruction that discusses the concept of an “abiding belief.” Prosecutors like to use a puzzle analogy, which the Court of Appeals didn’t like.  They called it Prosecutorial Misconduct and reversed the case.  Here is the famous puzzle analogy:

I like to look at abiding belief and use a puzzle to analogize that. You start putting together a puzzle and putting together a few pieces, and you get one part solved. So with this one piece, you probably recognize there’s a freeway sign.  You can see I-5. You can see the word “Portland” from looking in the background. You may or may not be able to see which city that is, but it is probably near one that is on the I-5 corridor.  You add another piece of the puzzle, and suddenly you have a narrower view. It has to be a city that has Mount Rainier in the background. You can see it. It can still be Seattle or Tacoma, or if you weren’t familiar, you might think that mountain might be Mt. Hood, and it could be Portland.  You add a third piece of the puzzle, and at this point even being able to see  only half, you can be assured beyond a reasonable doubt that this is going to be a  picture of Tacoma.

For two years in a row now the Court of Appeals has published prosecutorial misconduct cases stating that the “filing in the blank” description of the jury’s duty isn’t lawful because it assumes the jury should begin from a presumption of guilty.  Lets be clear, the jurors do not have to convict if they can’t fill in some piece of evidence.  In fact, the opposite is true.  Any doubt based on reason means acquittal.

The puzzle analogy is a problem because it trivializes of the duty the jurors have and misstates the duty act.  The severity of the judgement and the duty to act are not treated well by the puzzle analogy, changing lanes on a freeway, elective surgery, or leaving children with a babysitter the Court has said for two years now.  The question isn’t one of how certain do they need to be to act (or convict) but one of what would cause them not to act or not acquit.  They are to begin with acquittal unless all doubts are dealt with by the state.  The prosecution analogies minimize and trivialize the situations that the jury should not convict.

Prosecutors like to argue that when you decide to change lanes you will unless a car is in the way.  You have decided to change before you look but you will hesitate if a car is there.   The presumption is of guilt, or changing lanes, when the opposite is the law.

So its back to the sidewalk for more heinous bike riders.