The Wilmington Public Defender has asked you to review the case file in State v. McAlister to advise him via memo whether he should advise the client, Jose McAlister, to accept a guilty plea offer from the prosecution. The state charged Jose with: murder in the 2nd degree, with up to life imprisonment; possession of cocaine with the intent to distribute, with up to 30 years’ incarceration; possession of child pornography, with up to 2 years’ incarceration; and possession of a firearm in furtherance of drug trafficking, with a mandatory consecutive sentence of 5 years’ incarceration. The plea offer is to plead guilty to possession of cocaine, with a sentence of 8 years’ concurrent incarceration; possession of child pornography, with 5 years’ concurrent incarceration; possession of the firearm, with 5 years’ consecutive incarceration, and voluntary manslaughter, with 30 years’ consecutive incarceration. The prosecutor is coming up for election and wants a victory against gangbangers to help his campaign. The plea offer won’t get any better, especially since he said his office won’t pursue any other crimes arising from the facts in the casefile if Jose takes the deal. The plea offer ends by the end of next week, and the Public Defender wants the memo in his inbox ASAP. You remember you’ve kept your textbook from CRJ 411 and bring it to your desk with the case file. Memories of constitutional rights and privileges, investigatory procedures, scientific evidence, and rules of evidence and testimony flood your mind. You sigh as you recognize the plight of the public defender: you work in the best interests of the client, who is almost always unhappy with the outcome regardless of how sweet it is. Nonetheless, it’s likely that Jose is going to file a complaint with the bar association unless he is acquitted. Plus, budget cuts are looming, and your job may be cut unless you show the boss you’re a star. Good thing you’ve always enjoyed puzzles. Case File* The case file reveals the following information: Jose McAlister, aged 20, refuses to testify against his gang. Although we know he is, the Government suspects Jose is a major player in the 1-niners street gang. The police arrested Jose on August 15th pursuant to an arrest warrant that, unbeknownst to the police, was out of date and issued from a neighboring jurisdiction for a traffic infraction that Jose had already pleaded guilty to and paid off. Before being put in the police car, the police search Jose and find car keys with an alarm button in his pocket. The police put Jose in the back of patrol car and chirp the alarm. A black car 500 feet up the street with tinted windows and shiny wheels and parked in a free, 24- hour private parking lot chirped in response. The police use the keys to open and search the car. They find $1,000 in $20 bills, a box of ziplok baggies, and a half-kilo of crack cocaine powder in the glove box. They also find an artsy picture of a seductivelyposing naked girl who appears to be under the age of 16 under the bottom cushion of the driver’s seat, and she holds a small paper reading, “Happy Birthday, Mick” in Spanish. A map with a circle over a portion of Interstate 74, a firearm, and a knife with residue on the blade are found under the passenger’s seat. The map leads them to the naked body of Venzie Viktum, wrapped in plastic in a ditch along the interstate overgrown with weeds 4 feet high. This is the same location that the Gypsy Psychic hired by the police to help solve crime told police to look for evidence of “murderous cosmic karma” the day before, but the police had not yet followed up on the lead as they routinely did. The pathologist discovers only a stab wound to the heart and the time of death was 2 to 3 days earlier, that the body was moved after death, and latent fingerprints of a right hand is found on Venzie’s right hand, much like Venzie and the other person clasped their hands together. Discovery reveals that the pathologist will testify that the print belongs to a Hispanic male in his early 20s and that the fingerprint was impressed at the moment of death. The police brought Jose the station, Mirandized him and interrogated him for 24 hours with short breaks for the bathroom, naps, and snacks from a vending machine. By the end of the interview, Jose said that he heard about the hit on Venzie on the street but that was all. He then refused to answer more questions until he got his free attorney, the lead investigator barked, “You’re a murdered, Admit it!,” and Jose quipped back, “He got what he deserved!” The police left the room, and our Office began representation. Jose told our paralegal that everything in the car is his, except for the picture. The car used to belong to Jose’s dad, Richard McAlister, who died last year and that the picture looks like his deceased Mom, who his Dad met while a missionary in Bolivia twenty years ago. (Not surprisingly, Richard “left” the church and legally married Mom in Bolivia when she was 15.) Willy is a prosecution witness who testified at a preliminary hearing how he was in a drug distribution conspiracy with Jose, although he never actually met Jose. However, he talked on the phone with a guy named Jose who would have crack cocaine delivered by different guys and who talked about, but didn’t admit to, the killing of an unidentified rival gang member. Jose tells you that he knows of Willy and that Willy is mentally retarded and easily talked into things by people Willy thinks are cool and powerful. The prosecution’s discovery reveals the certificates of analysis done by an intern at the Government laboratory, who is not yet on the list of witnesses to be called by the prosecution, showed the powder was half a kilo of crack cocaine, the blood on the knife matched Venzie’s, and Jose’s fingerprints were on the knife. The prosecution plans on calling as a witness Jose’s former attorney, who lost his law license because he was the gang’s attorney and had engaged in unethical behavior unrelated to Jose. The attorney knows everything, even more than we do, about all Jose’s illegal activities, and he could do major, major damage to our client. The prosecution also plans on calling Nancy Nozzy, who lives along I-74 and whose property abuts the ditch. Although Nancy is the neighborhood watch captain and wins the neighborhood award each year for the most manicured lawn and gardens, neighbors don’t appreciate how she walks her property each day, inspecting everything (and everyone) that is around her property. (Our investigator got this information from her neighbors as she refused to talk to our investigator.) Our investigator talked to Ian Comniak, who lives next door to Nancy and is relapsing from an addiction to Ambien. (The prosecution plan on calling Ian, too.) At around 1 a.m. three days before Jose’s arrest, Ian allegedly saw a really tall man walking from a dark colored car, shiny wheels, and tinted windows parked along the interstate 300 feet away and through the 4 foot tall weeds stand there for about 30 seconds and then walk away, but appearing shorter and skinnier when walking back. The lead investigator, who has Hemifacial Spasms (AKA facial-muscle twitches), conducted a photo lineup with Ian, showing all 5 pictures of Asians and 1 picture of a Hispanic at the same time. Ian picked Jose after asking the investigator, “Is this the guy?” Jose’s neighbor was a computer geek who police discovered was trading child pornography. Police got a lawful warrant to search the neighbor’s house and computers, but they accidently entered the wrong half of the duplex where Jose lived. Thinking it was the neighbor’s, the police seized Jose’s laptop, which has an encrypted file called, 19$trans, which they found before they realized they raided Jose and not the geek’s apartment. The police then got a warrant for the computer. The police believe the file contains has evidence of drug transactions, which Jose confirms to us is the tracking spreadsheet of how much drugs were fronted to whom and who owes money to the 1-niners. The Government can’t crack the encryption, so the prosecutor told the Public Defender that he will file a motion asking the court to compel Jose to give up the password or to decrypt the drive. Jose told us that part of the password is, “19drugtransactionsandmoneyowed.” The prosecutor further threatened that if Jose doesn’t release the contents of the file, he will ask the court to keep Jose incarcerated every 60 days for contempt of court until Jose complies. After speaking with Jose, our paralegal estimates that the drug transaction quantities listed in the file would get Jose life imprisonment. The prosecutor will likely convene a grand jury to further indict Jose for conspiracy to distribute many, many kilograms of crack cocaine if Jose doesn’t accept the plea offer. * Sources Materials from Criminal Evidence: Principles and Cases, 9th Edition – Cengage
Originally posted 2018-05-01 22:38:18.