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Does justice always have to be blind?

 

 

The Dugué Defense: Part 11

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by Firpo Carr

Online Sentinel International -- The Firpo Files

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A Second Shot at an Innocent Man

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September 4, 2012, Los Angeles, California--In a devilishly brilliant strategy concocted by a frantic prosecution team in its sham case against retired Sgt. Gerard Dugué of the New Orleans Police Department lead prosecutor Bad News "Bobbi" Bernstein gets a second chance to shoot an innocent lawman in the back. She did this by cunningly defying a direct order by the judge in an effort to call attention to an unrelated case that Dugué investigated. Here's how it all went down:

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The Court's Prohibition: Knowing that it doesn't have a case against Dugué, an anxious prosecution team sought to introduce the unrelated case of Raymond Robair, who died while in the custody of two NOPD officers. Apparently the two officers gave investigator Dugué one version, but the truthful version eventually came out, and the officers were convicted in 2011 for misconduct. Being completely innocent of anything remotely resembling a crime or cover-up, Sgt. Dugué was never charged in the Robair case. But, this undisputed fact didn't stop the pigheaded prosecution from trying to introduce the Robair case as evidence against Dugué.

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Dugué's attorney, knockout specialist "Clobbering" Claude Kelly, filed two pre-trial motions in limine. What is a motion in limine? According to one internet source, ‘it is a motion usually made at, or just before, a trial to prevent a party from introducing certain evidence. For example, if you know the other side in a lawsuit is going to try to put in evidence something that is totally irrelevant to the case, or highly prejudicial, you would make this motion so that it can be dealt with outside the presence of the jury. This way, the jury does not think you are trying to hide anything from them and doesn't draw any negative conclusions about your case.'

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"Clobbering" Claude Kelly noticed that Dugué's Robair investigation report was on the prosecution's list. Kelly successfully got the district judge to exclude the report as evidence. The appellate court that later reviewed the case wrote in its decision: "Prior to trial, the district judge excluded evidence related to Robair under Federal Rule of Evidence 404(b)." FRE 404(b) says that irrelevant evidence like the Robair investigation report "is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character."

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Plainly stated, the prosecution--in its extreme desperation--is rightfully and legitimately barred from using the Robair case to try to prove the boldface lie that Dugué goes around attempting to cover-up bad police shootings. It simply is NOT in his character to do so.

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As noted, Dugué's two pre-trial motions in limine were granted, and the prosecution team--particularly Bad News "Bobbi" Bernstein--was told by the judge NOT to say one word about the highly irrelevant, potentially prejudicial case of Raymond Robair. Did the prosecution heed the judge's prohibition? No. "Bobbi" Bernstein was a bad girl.

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Prosecutorial Misconduct: Knowing that the trial was not going their way, the beleaguered prosecution team had to pull a rabbit out of its hat in order to grind out a wrongful conviction. Therefore, right smack dab in the middle of open court, as an unsuspecting jury looked on, Bad News "Bobbi" Bernstein said to a prosecutorial team member, "Get me Robair." Again, this was in bold defiance of the judge's order NOT to say one word about Robair! So, what was Bernstein's excuse?

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The appellate document answers: "The prosecutor claimed that, by raising his eyebrow and nodding his head, the district judge had given her permission to introduce the Robair case." You've got to be kidding, right? What an incredibly lame excuse! Did the judge have to pick his nose as a sign that she didn't have permission? Moreover, the question now is, How low will Bad News "Bobbi" Bernstein and team prosecution stoop to convict an innocent man?

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Mistrial!: Understandably, "Clobbering" Claude Kelly, Dugué's attorney, asked for a mistrial. (While this was undoubtedly the right move to make, Kelly unwittingly played right into Bernstein's hand. She was confident that she could overcome the Double Jeopardy Clause as discussed immediately below.) "The district court granted the mistrial because the prosecutor mentioned the Robair case while cross-examining Dugué," writes the appellate court. But, does a mistrial mean that the case cannot be tried again?   

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Double Jeopardy?: Claiming double jeopardy, "Clobbering" Claude Kelly said yes; Dugué shouldn't be tried again. The judge disagreed. But what exactly is "double jeopardy"? The Fifth Amendment (often called the Double Jeopardy Clause) to the U.S. Constitution says: "No person shall ... be subject for the same offence [sic] to be twice put in jeopardy of life or limb." In other words, state and federal governments cannot prosecute you twice for the same alleged crime. But this is precisely what the prosecution wanted to do. They were losing the game and faked an injury to buy more time.

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Given its weak, overwhelmingly anemic "evidence" against Dugué, coupled with a cast of prosecution witnesses that was seriously deficient in credibility, mistrial (and thereafter retrying the case) was the only "solution" for the distressed team of government prosecutors. They needed more time, and time is what they ultimately got.

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Citing the case of Oregon v. Kennedy, 456 U.S. 667 (1982), Dugué intimated that this purposeful, deliberate scheme orchestrated by the prosecution in its attempt to have his case retried should be recognized as such and summarily dismissed by the court. However, the judge concluded that Bad News "Bobbi" Bernstein did not intentionally cause a mistrial. As has been documented: "The Court is not persuaded that, in saying ‘Get me Robair' in front of the jury, prosecutor Barbara Bernstein sought to cause Defendant to seek a mistrial." (Emphasis supplied.)

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Since Dugué and the judge could not agree on whether or not Bernstein purposefully plunged the case into the waters of a mistrial, Dugué decided to appeal to a legal team of lifeguards.

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Appalling Appellation?: Dugué appealed to the United States Court of Appeals for the Fifth Circuit for resolution. This court examined the case of Oregon v. Kennedy, 456 U.S. 667 (1982)--ruled on by the U.S. Supreme Court--that Dugué referenced in connection with double jeopardy. In its usual prosecutorial favoritism, the Supreme Court left a loophole in Kennedy that the appellate court pounced on. The High Court ruled in Kennedy:

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"Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." (Emphasis supplied.)

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Commenting on this conclusion the Court of Appeals for the Fifth Circuit said in another case (United States v. Wharton): "In Kennedy, the Court made it clear that prosecutorial misconduct alone is not sufficient for a retrial to result in a double jeopardy violation. ... Once the court determines that the prosecutor's conduct was not intended to terminate the trial, ‘that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment.'"

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The appellate court's bottom line is this (which they documented): "For Dugué to obtain retrial, he would need to prove that Bernstein's ‘get me Robair' request was intended to cause a mistrial-a factual determination." Amazingly, the sum total of all the appellate court's reasoning is convoluted at best.

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The panel has concluded that prosecutorial misconduct "does not bar retrial absent intent." Then it says, "Retrial is not barred even where the prosecution engages in ‘intentional misconduct.'" When held in juxtaposition, even blind justice can see that these are conflicting concepts that come dangerously close to being diametrically opposed to each other! It makes for this impossible situation.

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Although the appellate court acknowledges that prosecutorial intent can cause a mistrial and subsequently bar retrial, Dugué has to prove Bernstein "intended to cause a mistrial." Dugué would literally have to somehow access Bernstein's psyche, navigate through the clutter as he reads the thoughts in her mind and objectives in her heart, and then produce a printout of ‘her intent to cause a mistrial,' specifically to facilitate claiming de novo (Latin meaning in law, "new trial").

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Confused? If so, it is by systemic design. I can see Bad News "Bobbi" Bernstein with a smirk on her face telling Dugué: "Good luck with that."

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Systemic Racism: The legal system--the American system--conveniently and deliberately hides behind the insensitive, inhuman, and brutality of racism and discrimination. The onus is on the Black victim to prove what the racist White perpetrator is thinking. That this is central to the warp and woof of our legal system can be seen from yet another case (Armstrong v. United States), involving an African American male and a Supreme Court ruling.

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In her book The New Jim Crow (2012), the highly acclaimed civil rights attorney, advocate, legal scholar, associate professor of law at The Ohio State University, and former associate professor of law at Stanford Law School, Michelle Alexander--a young African American wife and mother--made this startling revelation:

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"As a result of the Armstrong decision defendants who suspect racial bias on the part of prosecutors are trapped in a classic catch-22. In order to state a claim of selective prosecution, they are required to offer in advance the very evidence that generally can be obtained only through discovery of the prosecutor's files." (Italics in the original.) It gets worse.

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"The Court justified this insurmountable hurdle on the grounds that considerable deference is owed the exercise of prosecutorial discretion. Unless evidence of conscious, intentional bias on the part of the prosecutor could be produced, the Court would not allow any inquiry into the reasons for or causes of apparent racial disparities in prosecutorial decision making." (Italics supplied.) Sounds familiar?

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Dugué had to produce evidence of Bernstein's ‘intent to cause a mistrial,' just as Armstrong was required to supply "evidence of conscious, intentional bias on the part of the prosecutor." These are obviously impossible situations.

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Therefore, racism and discrimination against Black defendants have been officially and purposefully codified, homogenized, and sanctified; and race unabated like a deadly disease through our legal system and beyond.   

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Let This Be a Lesson: The appellate court, in a seeming effort to absolve its collective conscience, benevolently decided to use Bernstein's intolerable behavior as a teaching moment. How gracious of the august panel. "Her excuse," say they, "that the judge's head nod in response to her raised eyebrow implied permission to introduce previously excluded evidence, is certainly unacceptable." Duh.

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So should she be sanctioned? Will concrete action be taken against her?

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Here's what the appellate court wrote: "The prosecutor's improper behavior offers a reminder that attorneys should hew closely to the orders excluding evidence and seek clear permission when they are approaching those topics at a later point in trial." Hew? Whew! That's it?

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Well, that certainly makes things all better. Now more prosecutors know that they can always use the "Bobbi" Bernstein two-step, also known as the initiate-a-mistrial-then-move-for-a-retrial-that-a-racist-legal-system-will-grant-you trick to get a second shot at an innocent Black lawman.

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In short, the appellate court's ruling was appalling.

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The Second Time Around: It is as I stated previously under The Dugué Defense, Day 5 entry (posted during what I call "Dugué I," that is, his first trial): "Seemingly working in tandem with The Times-Picayune, the prosecution got this case out into the court of public opinion, consequently we all now know about the Robair case. But, as is the case with the Danziger Bridge incident, Dugué was not a party to the Robair cover-up. He had nothing to do with it, hence, the reluctant Picayune confession: ‘Dugué was not charged in the case.' But that sneaky Bobbi Bernstein wanted to download a mind virus into the collective thought of the jury.'"

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Regrettably, the appellate court and the local media have facilitated the dissemination of this mind virus and special steps must be taken to retard its spread. After all, it's like the joke of a jury disregarding what they've heard, "You can't unring a bell." The jury's consciousness has already been infected.  

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Be that as it may, it is my sincere hope that the present article--as well as previous and future ones--acts as an antidote to the Bernstein-initiated virus that has the potential of contaminating a new set of prospective jurors, in addition to all those occupying the court of public opinion.

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Dugué I ended in a mistrial. What will happen with Dugué II?  

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We'll all just have to stay tuned after the bell sounds for the second time around for the trial of retired Stg. Gerard Dugué on Monday, October 29, 2012, two days before Halloween. And while the wrath of Hurricane Isaac (which means "laughter" in Hebrew) will have long subsided, one wonders if Bad News "Bobbi" Bernstein and the rest of the prosecution team--on Halloween--will cause some snickers by coming dressed as court jesters.

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See you in court.    

Click here for Sgt. Gerard Dugué's background