Mimesis Law
24 September 2017

Video Doesn’t Change the Fact He’s Guilty

Jan. 15, 2016 (Mimesis Law) — Normally not the types to try to suppress video of a crime, it seems prosecutors take a very different position when the video is of a drug raid and the crime is cops stealing from a defendant. Take the case of James Banuelos.

Prosecutors are hoping to exclude video footage of an officer allegedly stealing cash from the defendant during a drug raid, concerned that it will compromise the outcome of their case.

The allegation against the officer seems quite well-supported:

The raid was subject to an extensive FBI investigation after Banuelos presented footage recorded on a hidden camera during the search. The video appears to depict multiple officers taking cash from Banuelos’ wallet, laughing, and pocketing the money.

It takes no time at all as a practicing defense attorney before you start to hear about law enforcement stealing from your clients. The clients, unsurprisingly, are usually drug, prostitution, or other non-violent, victimless crime defendants. Not only are they more likely to have cash and items of value for police to steal, but they’re people with minimal credibility in the eyes of the general public. Officers who do it no doubt realize it’s likely to be the perfect crime. In fact, all too often, the only way their soon-to-be-defendant victim is going to convince anyone it’s true is with a hidden camera, just like what happened in Banuelos’s case.

Catching them is hard enough, but deriving any benefit from it would be even tougher if prosecutors had their way:

“The fact that there may have been officer misconduct has very little effect on the issues in this case and would tend to evoke an unfair emotional bias against the People’s case,” Padilla argued in her motion filed in Del Norte County Superior Court.

There’s a certain logic to some of what the prosecutor is saying. It doesn’t seem the cops were allowed to conduct the raid in the first place due to any sort of misconduct. Nothing at all suggests anything about the raid was unlawful until after it had started. There also may have been some honest cops involved, ones who took no part in the theft and had done legitimate police work to catch a guy who allegedly had a pound of meth at his drug house. I can understand the argument that the actions of some bad apples during the search shouldn’t invalidate the whole thing.

On the other hand, officers will presumably have to testify about what they found, and their credibility will be pretty important. The video of misconduct during the search has a huge bearing on that. Banuelos’s defense attorney didn’t miss that fact:

Riese called the motion “dubious at best,” since the evidence of officer misconduct compromises the credibility of any officer testimony from the raid.

Most jurors simply don’t believe defendants who claim officers planted drugs. There are also all sorts of little things an untruthful officer might claim to help get a conviction based on a search. It could be something as minor as arguing the drugs were more visible than they really were and that Banuelos must have known of them, or that other items clearly belonging to Banuelos were in with the drugs. Jurors aren’t inclined to doubt an officer about those things either. All of that might change if they knew one or more cops in the same group stole from the defendant during the search, however.

Furthermore, the argument that it would evoke an unfair emotional bias against the state doesn’t seem terribly strong. Sure, the prosecutor didn’t participate in the misconduct, but how exactly is it unfair to the state for jurors to know that some of the cops who conducted the raid stole from the defendant? They apparently did it. It’s apparently on video. They were there to build the state’s case, and for all we know, all of the cops were in on it. Some of them are sure to testify.

Just because the video only showed certain cops doing something wrong doesn’t mean others didn’t too. I hear that sort of argument from prosecutors all the time when it’s defendants who happen to be at the scene of criminal activity, and there’s plenty of reason in Banuelos’s case to think that the ones stealing money may just be one little part of a bigger problem:

Riese said there were also inconsistencies with items missing from the residence after the raid and those that were documented in the initial search returns.

Among them, was a gold chain belonging to Banuelos that appeared to go for sale on Craigslist days after the search, with a geo-tag location for the online post indicating it was made by a county employee, Riese said.

According to Padilla’s motion filed Wednesday, the FBI investigation determined the chain was being sold by an unrelated third party who claimed to have bought it years ago.

“In this case, my client says that it becomes ‘interesting’ that his jewelry shows up on Craigslist and it does not show up on the evidence listing until the FBI becomes involved,” said Riese.

Riese also takes issue with a trailer seized from Banuelos’ property ending up in the possession of one of the Sheriff deputies who assisted in the search. The deputy claimed to have owned the trailer years ago before it was “junked” by a local tow service, says Padilla.

The trailer was not documented on the initial search return itemization, said Riese, and was returned to the deputy without the proper legal recourse.

“The proper way of doing this was that they file a report instead of his colleagues giving him authority to re-acquire what was his by questionable ownership,” added Riese.

It’s amazing the things people are willing to believe from people who are ostensibly on the same side they are. If the evidence described above pointed to anyone other than cops, there would be more defendants. As it stands, there’s just one:

Former Pelican Bay State Prison Correctional Officer Matthew Yates, who assisted in the raid as part of a special team from PBSP, was charged with misdemeanor theft late last year in relation to the video. He admitted taking the money during questioning by FBI agents, according to reports the FBI filed with District Attorney Dale Trigg’s office.

Two big arguments prosecutors love to make when trying to prevent police misconduct from affecting their cases are that the criminal justice system deals with bad cops and that defendants can pursue a civil case as well. The former, normally an argument contradicted by reality, is actually present in Banuelos’s case. However, the cop will probably get a slap on the wrist, and Banuelos will still face serious charges. He is probably not even going to get any restitution out of it due to the source of the funds the cops stole, something that will similarly have an impact on any civil case. I can imagine the civil defense attorney talking about the case to Banuelos’s lawyers: “you’re suing because cops stole your client’s drug money and the stuff he bought with it?” It’s hardly the sort of case that screams jury appeal and big damages.

A quote from the defense attorney that can’t be completely serious ends the article:

“This,” said Riese, “is a system that is supposed to get to the truth, and you want to hide the truth from the jury?”

It’s not really about getting the truth at all, of course, and for many prosecutors, it’s mostly about convictions. Banuelos did something wrong. What those prosecutors don’t want to do, the thing they probably want to avoid above all else, is let anyone get away with anything. That’s often true no matter how egregious the government’s conduct in connection with the case happens to be. They’ll even charge cops if they must, but anything that prevents them from convicting is far worse. The prosecutor in Banuelos’s case apparently has that mindset.

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