Harvey Silverglate of Three Felonies A Day fame has an op-ed in the  Boston Globe to remind us of why the FBI does not subscribe to the meme of without pics, it didn’t happen. This will come as a shock to many, but the FBI has a policy, an actual written policy , forbidding agents from recording interrogations.

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.

The memo in part attempts to defend the policy as logistically necessary, but given that virtually every cellphone today has sound recording capabilities, any “inconvenience” or “non-availability” excuse for not recording seems laughably weak. The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

This is where an appreciation of what happens is a bit more difficult to appreciate.  We can picture, for example, an old time steno sitting there, taking copious notes to precisely record what’s being said, but that’s not the case. There are two agents, one doing the talking and one doing the writing. The one doing the writing puts on paper the things he decides he wants to put on paper.  It goes something like this:

Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?

A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?

Notated in 302: D cannot recall when he first went to bomb website. Went “constantly.”

See what he did there? Funny, right?  Unless you happen to be the person being interrogated, in which case there’s nothing funny about it. I have a permanent bruise just below the elbow where clients squeeze while whispering in my ear, “that’s a lie, that’s not what I said.”  Ah, reality versus truth.  It may not be what really happened, but whatever is written on a 302 is truth in a United States Courthouse.

And if it’s bad in more pedestrian cases, it’s worse where the subject matter is sophisticated or industry jargon is involved. The substance flies over the agent’s head, so that the only thing understood, and written in permanent ink, is “guilty, guilty, guilty!” There is no nuance on a 302.

A recording can be subject to dispute. A 302 is not. The defendant is placed in the untenable position of engaging in the proverbial “pissing match” with the agent over what words were spoken, and the spray stings. Whether it’s a 1001 violation or obstruction of justice enhancement, there is a price to be paid for dispute. Sometimes it’s worth the risk, but only because the option of letting it slide is so onerous that there is no choice.

As Harvey concludes, the FBI’s choice of not recording interrogations shouldn’t entitle them to a presumption of credibility. Indeed, it flies against everything that we know to be true, that they can easily record and thereby provide the court, defense and jury with an indisputable record of what was said.  

And yet, they don’t and it doesn’t seem to bother much of anybody. Well, except the defendant. But then, it’s not like he matters, since he’s “guilty, guilty, guilty!”  After all, the 302 says so.

H/T Radley Balko

Via Ed at  Blawg Review (yes, the rumors of his demise have been greatly exaggerated).



An interesting perspective, if one doesn’t mind doing a lot of squinting when looking through rose colored glasses.  It brings to mind the adage, when you hear the sound of hoof beats, don’t assume it’s a zebra.  On the other hand, if it gets you through the day, assume whatever works.

If I had to choose between government without newspapers or newspapers without government, I wouldn’t hesitate to choose the latter.

–Thomas Jefferson

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

What distinguishes this story from the everyday accumulation of phone records, or otherwise private information that the government feels compelled to obtain, is that it happened to one of the most significant news organizations in the world, and that it happened to one of the most significant news organizations in the world.  No, the repetition wasn’t accidental.  I’ll explain.

Should the government have done this to you, or me, this would not be a headline.  What happens to our lives, our privacy, our world, may matter a great deal to us, but not so much to others, and certainly nothing to the AP.  But what happens to the AP constitutes a “massive and unprecedented intrusion,” according to the AP.  That’s because it happened to them.

But then, the AP is, by every definition, the Press, with as capital a “P” as one can type. It is the fourth estate, an organization whose duty, at least in concept, is to disseminate news, information and ideas to the public. This function is so critical to the viability of a democracy that its freedom is enshrined in the First Amendment to the Constitution. 

Among the tools in its arsenal is the ability to publish information provided by unnamed sources, who may be government officials, who reveal things that the government might prefer not be revealed.  This could be the CIA’s involvement in thwarting a terrorist plot, or torture perpetrated by the CIA, or corruption. It could be anything that the public needs to know to exercise our responsibilities as citizens in a working democracy. Without information, even if it’s embarrassing or, as in this case, overly revealing, our form of government cannot work. 

The question isn’t whether AP’s disclosure was inappropriate and harmed covert national security issues. It probably did. But then, what is the question?

According to Orin Kerr, the question is whether the government, using the tools and methods made available to it by law and regulation, are authorized to ferret out the source who improperly disclosed the CIA’s involvement to a reporter.  In other words, from the perspective of national security acting within its lawful parameters, there was a need to stop the leak and they did what they had to do. That it was done to the AP was unfortunate, but that’s where they needed to investigate.

Orin challenges readers to explain where the government violated any of its own laws or regulations in doing so.  The Department of Justice  issued a statement explaining its purpose.

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations.  Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media.  We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation.  Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

This is where things went awry. The government creates its own regulations to effectuate its performance of its responsibilities to us.  Theoretically, we approve of its doing so, since we elect smiling/angry faces to be our voice in government, but since we make such electoral decisions based on overarching interests and at wide intervals, nobody really believes that this reflects a majority approval. It’s just the unfortunate backside to republicanism. You vote the big picture and suffer the details.

In contrast to the regulations, with which in fairness most people would have no problem provided it happened to someone else, we have an interest of constitutional magnitude.  The Attorney General has taken it upon himself to balance “the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

See what he did there? It’s not the freedom of the press versus finding his leaker, but the “fair and effective administration of our criminal laws,” the whole megillah. The criminal law of which he speaks would be the one that prohibited someone from leaking to the press that this was a covert operation by the CIA, because they didn’t want Al Qaeda to know the CIA was on to them. It’s a worthy concern, but less than the “fair and effective administration” of justice. Nobody wants to sacrifice the fair and effective, well you know. But is catching their leaker worth seizing the AP’s phone records?

The government says it is.  The government says it complied with the rules it made up for itself. The government is sorry it came to this, but fair, effective, well, is important.  The government says it’s important enough to sacrifice some harm to the free press. And they’ve woken the AP out of their complacency, because nobody lost any sleep when it was me or you who the government might target.

One of the most important, most discussed, most controversial and most worthless decisions issued by the Supreme Court of the United States of America turned 50 yesterday. Written by William O. Douglas, it offered a promise of substantive fairness that was breathtaking.  Fifty years later, the joke’s on us.

Brady v. Maryland held that the prosecution violated the due process clause by withholding material favorable to the accused from the defense.  To this day, I imagine Wild Bill Douglas laughing out loud, muttering to his clerks, “let’s see what problems this causes ’em.”  Funny guy, Bill.

In an excellent HuffPo post,  Radley Balko goes through a number of the loose ends of Brady.  The post is entitled Brady v. Maryland Turns 50, But Defense Attorneys Aren’t Celebrating, recognizing that this decision, together with its progeny offered perhaps the best chance our criminal justice system ever had to level the playing field and provide a criminal defendant with half a chance, maybe just a quarter but definitely more than he had before, to challenge an accusation against him by the most powerful government to ever exist on the fact of the earth.  And failed.

“It simply hasn’t worked,” says Steven Benjamin, president of the National Association of Criminal Defense Lawyers. “Brady violations are a system[atic], everyday problem in the courts. I would say they affect a majority of criminal cases.”

“In order to work, Brady relies upon police and prosecutors to locate and identify information that could cast doubt on a defendant’s guilt,” Benjamin explains. “The problem is that those are the people with the least motivation and least ability to do so. If they’re trying someone, they believe he is guilty. So they’re viewing all the evidence the prism of confirmation bias.”

That bias, Benjamin says, can be powerful. “You can have a piece of evidence that is pivotal to establishing someone’s innocence, and police and prosecutors could interpret that same piece of evidence as further proof of the same person’s guilt.”

While many prosecutors are undoubtedly honorable and likely make every attempt to comply with their Brady responsibilities, confirmation bias and a culture of conviction can provide a strong incentive to overlook or misinterpret exculpatory evidence, even unintentionally. With no counterbalancing disincentive, it isn’t difficult to see how Brady violations could become routine.

Over at the Puddle,  Andy Mergendahl pounds away at the myriad challenges to his “plain language” views on legal writing.

Who’a [sic] afraid of legal writing in plain English? A lot of lawyers. Since I started writing about legal writing, I’ve been amazed at how entrenched so many lawyers seem to be against the notion that legal writing should be as easy to understand as possible to the widest audience possible.

But that notion seems to strike fear into the hearts of many, I suspect because it seems to strike at the traditional lawyering culture that in the post-Great Recession economy seems in danger of disintegrating.

Andy’s “suspicious” attempt to rationalize those who don’t see it his way by attributing it to fear, and thereby ascribing fearlessness to himself, doesn’t serve to strengthen his argument. 

The tone of many of the comments, both here on Lawyerist and in other places, reflects what I think is a rejection of the democratic (note the lower-case ‘d’ there, please) nature of writing that any literate person would have a reasonable chance of understanding. In other words, there’s an elitist tone to much of the negative commentary.

That defensive elitism generally falls into one of several overlapping points of view, which I’ve titled in bold below. I’ve included parts of some comments on my posts as examples of those points of view.

• My readers and I are smart, so there’s no need to “dumb down” my writing.


• My clients are paying me to write impressive documents. That requires fancy language.


• I refuse to surrender “good” writing to the witless masses and their spineless apologists! This is all just liberal politics at work!


• Rules must be correct, otherwise they wouldn’t exist. So stop encouraging people to break them!


• You are wrong! I win! Neeners!*


• You’re wrong! You just are! I know this!

Had these been written by, say Brian Garner, I might characterize them as strawmen, but in a gesture of magnanimity and the liberal application of Hanlon’s Razor, no negative characterization is levied.  Despite Andy’s post bearing the banal scent of butthurt, the issue is worthy of discussion.  As Sam Glover  satirically wrote in response to a comment there castigating Andy for his persistence,

You’re right.. We shouldn’t argue about legal writing on a blog about law practice. Totally out of place.

Indeed, blogs about law practice are the appropriate place to argue about legal writing, and so I champion Sam’s cause.

The problem with Andy’s approach is that his basic premise is deeply, irreparably flawed. Andy explains his point of view:

[L]egal writing should be as easy to understand as possible to the widest audience possible.

A very egalitarian perspective indeed, but a very mistaken one.  Legal writing serves one purpose only: to communicate an idea as clearly as possible to a judge. Briefs are not novellas, to be read by Court TV viewers with poor reception. Contracts are not magazine articles to be skimmed by those with passing fancy. 

This said, it doesn’t mean that Andy is entirely wrong. Far too often, lawyers grow unduly enamored of words they feel are “lawyerly,” tossing in an errant “wheretofore” because it would take more effort to use more effective transition.  As Andy argues, many lawyers, often with youthful abandon, toss about the words they believe to be more lawyer-like so that their writing appears to conform with their limited grasp of legal writing. 

Also like Andy, they are wrong. Incomprehensible strings of lawyerish words may seem “learned” to non-lawyers, who mistakenly assume that the only reason they don’t have a clue what the lawyer is writing about is their lack of a law school degree, but are nothing more than gibberish. 

These two views, overly simple and overly lawyerish, reflect the polar extremes of the argument, and both are similarly misguided.  Legal writing that serves to clearly and precisely convey the message to the judge is good writing.  Writing that does anything else is not.

Or to put it another way, writing that thrills the masses, moves them, makes them laugh, makes them cry, becomes a part of them, but loses in court, is not good legal writing.  That’s because we are lawyers, and our duty is to present our clients’ cause to the decision-maker as effectively as we can.

Wherefore, your affiant sayeth naught.

* From the Urban Dictionary :

Even though he retired in 1999, the legacy of Louis Scarcella’s detective work lives on. It lives in the 16 years Jeffrey Deskovic spent in prison for a rape and murder he didn’t commit. It lives in the 23 years David Ranta spent in prison for the murder of a rabbi by someone else.  And  Brooklyn District Attorney Joe Hynes says its Scarcella’s fault.

The mistakes were largely pinned on Mr. Scarcella, who according to an inquiry by Mr. Hynes’s office let informants out of jail to visit prostitutes, often had no notes to back up his interviews and told a witness to pick Mr. Ranta out of a lineup. Mr. Scarcella, who retired in 1999, has denied any wrongdoing. 

 Inmates said he made up confessions, and Mr. Scarcella acknowledged having used the same crack-addicted prostitute as an eyewitness on at least six different occasions.

Legal experts say the office is playing the role of a champion against injustice after spending decades defending weak cases under Mr. Hynes and his predecessor, Elizabeth Holtzman.

“The disturbing thing is the way they are making this look like a rogue detective, when a lot of detectives in the late ’80s and ’90s were operating that way,” said Joel Rudin, a lawyer who sued the city on behalf of Jabbar Collins, a man exonerated after serving 16 years for a Brooklyn murder. Prosecutors “knew what was going on and took advantage of it to get convictions.”

I give David Lat at  Above The Law a lot of credit for trying to do the impossible, challenge U.S. News & World Reports list of the best law schools.  The cynical view of his effort is that he’s trolling for eyeballs by catering to the crowd of disaffected law students and young lawyers, but then it’s a topic that lends itself to cynicism.

Harvard Law School’s goodwill ambassador Elie Mystal explains to Lee Pacchia, who went to the same law school I did in 1979.


Any video that shows Elie in a suit, looking so “natural,” is worth watching.  For those who don’t know much about Elie, he’s smart and a fun guy to hang out with, though he talks about 100 miles per hour so you have to listen closely between slurps of beer.

Whether the approach has any scientific validity, or any more validity than the US News flavor, doesn’t really matter. The difference in approach is that US News looks to inputs, whereas ATL looked to outputs. In other words, the question wasn’t how many tenured lawprofs are on staff, or how many books are in the library, but how many students come out of school and get jobs.  The premise of the former is good inputs will produce good outputs, though there is nothing clear about what constitutes good inputs.

But at a time when law schools churn out 45,000 students for a society that can only offer jobs to about half, ATL questions in quasi-Moneyball fashion, whether the pieces of law school that we traditionally believe reflect their quality are anything more than baloney. 

The basic premise underlying the ATL approach to ranking schools: the economics of the legal job market are so out of balance that it is proper to consider some legal jobs as more equal than others. In other words, a position as an associate with a large firm is a “better” employment outcome than becoming a temp doc reviewer or even an associate with a small local firm. That might seem crassly elitist, but then again only the Biglaw associate has a plausible prospect of paying off his student loans.

In addition to placing a higher premium on “quality” (i.e., lucrative) job outcomes, we also acknowledge that “prestige” plays an out-sized role in the legal profession. We can all agree that Supreme Court clerkships and federal judgeships are among the most “prestigious” gigs to be had. Our methodology rewards schools for producing both.

Although the decision and order are dated April 29th, Justice Shlomo Hagler’s order hit the interwebz after hours on a Friday, a bit of internal irony under the circumstances.  Marco Randazza, counsel for a large group of Rakofsky defendants, post the order at the Legal Satyricon, and all 31 pages are available for your reading pleasure.

The TL;dr version is that the complaint, all 1200+ paragraphs and 300+ pages of it, is dismissed.  Sanctions are denied.

That the court dismissed the complaint should come as no surprise. It was baseless and stunk, but you already knew that.  It was procedurally defective in so many ways that it would have taken a small fortune to expound on the arguments and issues that are normally subject to intense scrutiny in an ordinary case, and most defendants just waved those issues for the sake of expediency and a final determination on the merits.

The decision was judicious, likely crafted for the purpose of covering all the bases on appeal so that it never darkens Justice Hagler’s chambers door again.  Its recitation of the facts was simultaneously damning and limited, addressing only the wrongs that came out of the Deaner trial and ignoring all that was learned afterward, and formed the basis for much of the commentary about Joseph Rakofsky.  In a way, it’s understandable, given the unwieldiness of the case, the facts, the forests of trees that died for the cause and innate desire to limit rather than expand issues.

At the same time, limiting the scope of the inquiry serves to ignore so many of the critical messages that  arose from Rakofsky’s conduct.  While it may make sense from a judicial perspective, there were a host of critical issues for the legal profession that were left on the table. This may reflect the difference between how one views the world as a judge versus those lawyers who waste their days trying to prevent the next generation from dragging the profession into the gutter. It may also explain why we’re bloggers rather than judges.

As for the denial of sanctions, this will give rise to some confusion by lawyers and others from foreign (meaning, not New York) jurisdictions.  In New York, sanctions are so rarely imposed as to be essentially nonexistent.  Was this the one case so outrageous, so frivolous, that sanctions would be imposed?

There are numerous factors that may have influenced the denial of sanctions.  Foremost, the dismissal of the complaint would ordinarily be deemed sufficient “punishment.” That’s how New York rolls.  But additionally, we have the fact that Joseph Rakofsky will live in perpetuity on the internet as the poster boy for what not to do in so many different ways.  More punishment.

Other influences include the sense that Rakofsky’s conduct, from its initiation in the Deaner trial to his websites to his suit against the Internet was, as Justice Hagler termed it during oral argument, a “rookie mistake.”  While others would explain it differently, this mitigates the basis for sanctions. Additionally, the court found some comments harsh and offensive, which generates some off-setting sympathy for Rakofsky. While it may not be a legal justification, sanctions are more about “feeling” than “thinking.”

On a firmer foundation, the imposition of sanctions would have been unlikely to lead to any defendant having received a dime, making them more a gesture than a reality.  At the same time, it would have given Rakofsky greater incentive to appeal, and exposed the decision to a greater likelihood of reversal, given the rarity of sanctions in New York.

Still, the notoriety of this matter, from its inception to the litigation, offered enormous opportunity for a court, a judge, to explain to a new generation of young lawyers, digital natives who see what was once a learned and honorable profession devolve into the gutter of deceit for their own self-interest, and who will use the courts to burden, if not shut down, criticism of their ways, that the law will not tolerate them.

While it is clear to those of us who spend our time on the internet and try our best to push young lawyers toward the path of ethics, hard work, client service and personal integrity, it may not be as clear to lawyers, even those in robes, who are not as aware of the race to the bottom and its impact on the future of the profession.  No one ever said that judges are tech aware or savvy. It’s not a job requirement.

And so the case of Rakofsky v. Internet comes to an end, perhaps with more whimper than bang as hoped, but still with one message that cannot be denied. Joseph Rakofsky’s claims were dismissed. The defendants win. Yes, Rakofsky burdened the defendants with the expense of having to defend against his gazillion allegations, and except for  the handful  of defendants who lacked the fortitude to put integrity ahead of convenience, the rest of us were prepared to suffer the cost and annoyance because integrity matters.  And so the defendants won.

If necessary, it will happen again on appeal.

There is probably no place in the country where the Castle Doctrine, the rule of law that allows a homeowner to take the life of a person who breaks into his home, with numerous local variations on the theme, more seriously than Texas.  Indeed, Texans seem to be of the belief that it applies to any variation on the theme, from someone else’s home to burglars outside the house, running away so they’re shot in the back. 

The motto of the Republic of Texas is “they needed killin’,” which makes what happened to  Jennifer Limon in Harris County all the more inexplicable.

You can hear the deputies asking the women to identify themselves, but the women refuse to comply and demand a search warrant. Then, the video shows the deputies arresting Limon.

She was charged for failing to identify herself to a law enforcement officer and resisting arrest.

Limon was in her own home. The deputies knocked on the door and she answered it. Some might question the wisdom of opening the door to police, but that’s not dispositive. By opening the door, she didn’t “open the door” to being questioned.  The threshold is a magic line in the law, a line that the police cannot cross except in very exceptional circumstances, unless they have a warrant. These deputies had no warrant.

The deputies were there to investigate, which is a perfectly fine thing for deputies to do.

Authorities said deputies came to the apartment as part of a follow-up investigation into the robberies, and added that the suspect’s stolen vehicle had been witnessed parked near Limon’s home earlier in the week.

Nothing there that offers any direct connection between the Limon’s home and the subject of the investigation, but that’s not the issue either. The issue arose when Limon refused to identify herself upon demand (or request, if one prefers police jargon and isn’t a slave to definitions). 

A spokesperson from the constable’s office said deputies didn’t need a search warrant because the women failed to give their names.

“That’s a violation of the law,” said Sgt. J.C. Mosier. “You have to identify yourself to a police officer. At that point, the officers entered.”

While this explanation may strike some as being superficially reasonable, Sgt. Mosier’s statement is sheer, utter legal insanity, enough so that it could go in the Hall of Fame For Stupid Shit Cops Say. No, you do not have to identify yourself to a police officer absent reasonable suspicion that you had, are or are going to commit a crime. Other than that, you have the right to decline and be left alone. Even in Houston.

And she had the forethought to have her cellphone video camera running, which sadly won’t embed and isn’t available on Youtube.  While recording the incident usually serves to give rise to excuses and denials, the Harris County Precinct 1 Constable’s Office doesn’t seem the least bit troubled by this conduct having been videoed, and apparently maintain that this was perfectly lawful conduct.

While watching this video, and in light of past commentary from Texans, the thought that went through my head was what would have happened had this not been Jennifer Limon, who obviously wasn’t particularly militant about the Castle Doctrine, but instead been a fellow with a gun inside his home.  The potential for an explosive situation was huge, and it’s impossible to say how many dead bodies would have littered the threshold of that home.

The police perspective is somewhat self-evident: they get to do whatever they feel entitled to do, and the citizen should comply now and complain later, provided he’s still alive to do so.  So what if they make a mistake of law, such as entering a home because the homeowner, for whom no suspicion exists, refuses to identify themselves upon command?  Want to live? Comply. 

To the police, it’s simple math. Do as they tell you and survive. 

This solution does little to protect the sanctity of the home, the constitutional rights of its occupants or the sense of unfettered entitlement to command the citizens for whom their position purportedly exists to bend to their will.  Compliance may be the safest route, though not necessarily, but it leads directly to the road to perdition. 

Chances are the deputies involved will be told by their supervisors to try their best not to embarrass the office again, and then given a medal for their bravery.  Limon will complain, which will then be investigated for the rest of her natural life until a determination is made that nothing happened here.  Maybe she’ll file suit and have it dismissed pre-answer on immunity grounds, or maybe it will settle for enough money to buy Slurpees for the whole family.

Not until the cops try this nonsense again with a guy with a gun and an attitude, and a few dead bodies litter the threshold, will the wrongfulness be taken seriously.  And one of the dead bodies will almost certainly be the homeowner, who will be absolutely right to protect his Castle. And very dead.

Olegs Kozancenko was a long-haul trucker.  Not a gang-banger or drug dealer. Not a child molester or con man.  A 58-year-old, 165 pound truck driver, finishing a haul and on his way home.  So how does he end up looking like this?



Well, the immediate reason is pretty simple: he was beaten by CHP Officers Andrew P. Murrill and Jim Sherman after they received “a report of a sleepy driver at the brake check station five miles east of the scene.”  Murrill gave Kozacenko a ticket for driving his truck too long, though it was based on his truck log for driving two days earlier.  It turns out that Murrill, by his own testimony, wasn’t a commercial truck “specialist,” which is code for he had no clue how to read the truck log or what the law required.  But that didn’t stop him from being a cop, so he issued the ticket, directed Kozancenko to sign it, and then Kozancenko did the unthinkable:

Kozancenko said he first wanted to read the ticket before signing.

The 220-pound Murrill goes on to write in his report that the 6’ 165 pound Kozacenko was “actively resisting ” and “exhibited extraordinary strength” in refusing to be detained. “It was not a standard arrest,” the officer stated on the witness stand, even with the help of his 190-pound fellow CHP officer Sherman on the scene with Murrill.

“He’s punched, his arm is broken, they’re on top of him face down, his ribs (are) fractured ,” said Katz. “They’re cutting off the oxygen for a significant period of time, they’re trying to use a taser on him.” 

…the truck driver suffered life-threatening injuries including a crushed left orbital eye socket, multiple facial fractures, a broken left arm, a concussion, unconsciousness and possible neurological damage.

Medical records also show that he apparently stopped breathing while lying out on the highway and had to be rushed to Auburn Faith Hospital. But Kozacenko’s injuries were too severe for that  hospital’s emergency room and he had to be transported to UC Davis Medical Center in Sacramento.

In addition to being cited by officer Murrill for driving over hours, Kozacenko was written up for DUI.   However,  that citation was also dropped (along with the driving too many hours charge) when Kozacenko’s  blood alcohol came back clean at 0.00%.

Acting Chief Ken Hill oversees the CHP Valley Division, which includes the CHP Gold Run office where Murrill still works. Hill told NBC Bay Area he could not address the specifics of the case because  of pending litigation, but assured that he reviews every incident where force is used by one of his officers including Kozacenko’s incident.

“It was not something that jumped out at me being ‘oh my gosh,’ we have some serious issues here,” Hill told NBC Bay Area.

But being a helpful sort, Acting Chief Hill offered these concluding words of wisdom.

“The public if they get stopped and simply comply with what they are asked to do, they have nothing to fear, nothing to fear at all. It is when a citizen decides to disregard the direction that they are given, and they decide to do something different, then things escalate, and I’m not talking about this case specifically, but sometimes a citizen will do things that causes us to escalate our actions,” Hill said.

Or to put it another way, do what we tell you or you’ll end up like Olegs Kozancenko. 

H/T FritzMuffKnuckle