In 2007, Ronald Jabalee Jr. and Ryan Jabalee stood over the grave of their murdered parents, Ronald and Christine Jabalee. As described in the Detroit Free Press :
Ryan Jabalee was heard crying or sobbing on a recording device set up by law enforcement at the gravesite of his murdered parents, . . . His brother, Ronald Jabalee Jr. — who is standing trial today in Macomb County Circuit Court in the October 2006 slayings — did not sound distraught.
There are few places where privacy is more obvious and expected than at a gravesite. It’s where a person comes to terms with the deceased, and where one can immediately tell whether there is anyone within earshot. Except when the police set up a recording device on the grave.
Defense attorney Stephen Rabaut said the device was installed without a warrant and that the Fourth Amendment goes beyond telephone calls and includes invasion of privacy.
“It’s eavesdropping,” he said, adding that Michigan has a law about eavesdropping.
The prosecution, as it occasionally does, disagrees.
Assistant Prosecutor Steven Kaplan disagreed, saying “there’s no privacy in public.”
What is particularly curious about Kaplan’s position is that it flies in the face of the argument proffered by police in their claims that they are entitled to privacy while threatening, shooting or beating suspects without cause. Of course, Ronald isn’t a cop, isn’t on the public dole and maintains, and is entitled, as Katz v. United States provides, to a reasonable expectation of privacy.
But the gist of the prosecution’s point here, and one that is generally misunderstood, is that eavesdropping is not limited to tapping phones or computers, but extends to the use of any electronic or mechanical means of intercepting a communication that could otherwise not be heard. In other words, if the police use a device of any sort to capture what they couldn’t capture otherwise, then it’s eavesdropping, and it requires a warrant with all the accompanying prerequisites to issuance.
Distinguishing this particular instance, however, is the troubling nature of the intrusion. The brothers stood at the gravesite of their parents. I would imagine that the police figured this would be a great place to put their mic, as it was very likely that the two would come visit the grave and, more importantly, do so together. They could capture the brothers talking to each other, maybe discussing how one, the other, both, murdered the folks. Perfect.
Yet the offensiveness of this intrusion can’t be ignored. Is nothing sacred? What (though this notion never occurs to cops) if they were wrong about one or both of the brothers having murdered their parents? What if these two brothers came to the grave to express their love and mourn their loss. Should the police have the ability to capture this moment? Maybe they can play it at the next cop party for kicks? Where does the desire to catch someone end and a bit of decency begin?
Notably, the police did not capture a confession, but they did get something that fit into their paradigm. Ryan was sobbing. Ronald, Jr., “did not sound distraught.” Aha! Gotcha. You see, as cases are tried, one of the methods of proving the secret, hidden motives of people which prove that they committed an act no one saw is that they don’t behave the way police would have them behave. Ronald should have sounded distraught. No distraught equals killer.
Sure, it could be that Ronald was stoic. It could be that Ronald, trying to be brave and bolster his sobbing brother, didn’t let down his guard and weep for his dead parents. It could be that Ronald isn’t the most emotional or sentimental guy. Or maybe Ronald was still in shock, needing years of therapy to come to grips with his feelings.
Doesn’t matter. The cops will testify how Ronald should have been distraught, because that’s the way people behave when the visit the grave of their parents. The defendant will never be allowed to put on a witness to testify to the contrary, because it would lack foundation unless Ronald testifies as to why he wasn’t sufficiently distraught to please the cops. Of course, Ronald can’t be compelled to testify, and may be one incredibly lousy witness for any number of reasons wholly unrelated to the allegations, but that won’t change how the testimony plays out. If Ronald doesn’t testify, then lack of distraught will equal guilty.
There should be no issue but that the recording of Ronald and Ryan Jabalee at the gravesite required an eavesdropping warrant. It’s a no-brainer, and the prosecutors contention that the electronic interception of communications of a private individual is permitted because it’s not behind closed doors, or on a phone, is ludicrous. One can only hope that the reason the cops eavesdropped without a warrant is that they didn’t believe any judge would have been callous enough to allow them to bug the grave.
H/T Bad Lawyer
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SHG –
I am in complete agreement with the post.
My question regards the prosecution’s ability to use the recording at trial.
Assume the recording is deemed relevant based upon some of its content (I don’t know one way or the other)and can be played to the jury. Can the prosecutor elicit from a police officer or other witness, testimony that in the witness’ opinion, the brother should have been distraught.
If that testimony can not come in as an unfounded psych opinion, can the prosecutor comment with such an opinion on closing.
Thanks for the blog. It is interesting.
I wouldn’t expect the prosecutor to solicit an opinion in that fashion, and it wouldn’t be admissible as a lay psych opinion. I would expect the prosecutor to ask something along these lines:
Q. And is there anything about the tape that struck you as unusual?
A. Yes, that Ronald didn’t seem at all distraught, as he should have been if he hadn’t committed the murders.
Q. What makes you say that?
A. In my 17 years as a police officer, and investigating homicides, I’ve never heard a child of a murdered couple sound like that before unless they were the killer. They are always like Ryan, crying and sobbing. In my experience, no one acts that way unless he was the killer.
I think an outdoor grave would qualify as a public place. My question is, what attorney in their right mind would proffer bugged conversation from a gravesight as evicence. I would think the sheer outrageousness of it would undo any help the prosecutor thought he would get. Most jurors would hate him.
And in closing the prosecutor would encourage the jury to use their common sense in evaluating the evidence. Among which is the evidence that Ronald didn’t sound or act distraught at his parents’ graves.
Whether it’s a public place is irrelevantl; that’s not the test. And while it’s outrageous that the police tapped a gravesite, prosecutors routinely use outrageous evidence. When trying a murder, this is nothing.
The plea to common sense fills all gaps.
Camus must be rolling in his grave.
Steven Kaplan was my applied evidence professor in law school (self aggrandizing full disclosure: he gave me an A). Great guy, was by far one of my favorite professors. But a prosecutor through and through, and completely committed to his belief that all defendant’s are guilty, and all defendant’s “testi-lie”. In class he would have asked a student “What is the basis for admissibility of the graveside recording.” The answer would certainly have been, among other things, “if the defendant doesn’t object.” I really enjoyed Professor Kaplan’s class, but the win-at-all cost approach is highly objectionable, particularly by a prosecutor.
No doubt he will use it, he has a very long track record of getting convictions in stale cases with only very limited circumstantial evidence of dubious admissibility. He is a very likable in personable in person, even when you deeply object to his methods and tactics. I’m sure his personable character has been a factor in his success as a prosecutor.
This case is remarkably similar to the one just argued before the Supreme Court (Snyder v. Phelps) regarding protests at funerals by the Westboro Baptist Church.
A funeral is a private affair, yet it takes place in public. I suspect that the decision in Snyder will resolve the conflict in yours. (Resolve legally, not necessarily morally.)
I’m afraid that this case bears absolutely no similarity to Snyder v. Phelps whatsoever. The “public place” raised by Kaplan is a red herring.
Updating this story, Scott. The Detroit media is reporting that Mr. Jabalee was acquitted, Friday, on all counts.
So I see, and in a one hour verdict as well. But do you know whether the judge allowed Kaplan to use the gravesite recording? I assume not, given that none of the stories mentioned it as part of the case against him, but there was no specific information on the judge’s ruling.
I don’t know about the legality of the recording, I’m just posting to give my view of its substance as evidence:
Useless.
If one of my colleagues suggested I put on “lack of crying” evidence I’d be shocked, and probably laugh. The common sense argument works both ways, of course, and I’d expect to lose credibility with the jury with such an argument.
Sometimes I get weary of defending those in my profession, we’re beaten upon by so many in the blawgosphere. Be nice if we didn’t provide y’all this kind of ammo, though.
DA Confidential prompted a recollection of my emotional reaction to my parents’ deaths in the 70s and 80s and then one of my younger sisters’ in 1991. Numb for months. Numb. Not a tear. Except for about half a minute during Dad’s funeral Mass I gushed and I was highly embarrassed.