Richard A. Oppel Jr.

Rodney Reed, who came within days of execution in Texas before an appeals court suspended his death sentence Friday, has been the most high-profile recent example, receiving support from Texas lawmakers of both parties and celebrities like Rihanna and Kim Kardashian West, who urged a new examination of the evidence.

Reed has long maintained that he did not commit the 1996 murder for which he was convicted. And in recent months, new witnesses came forward pointing toward another possible suspect: the dead woman’s fiancé, a former police officer who spent a decade in prison for kidnapping and sexual assault. (He denies committing the murder.)

Since the Supreme Court temporarily halted executions in 1972, at least 166 condemned inmates have been exonerated before their death sentences could be carried out. (Executions resumed in 1977 after states began revising their laws to comply with the high court ruling.) Advocates believe some most likely innocent men have also been executed since then, including Cameron Todd Willingham, whom Texas put to death in 2004.

Lawyers for death row prisoners frequently argue that their clients did not receive a fair trial, or file appeals on other procedural grounds. Yet researchers say there now are a striking number of cases where significant doubts have been raised about the condemned man’s guilt.

“This year has had an extraordinarily high percentage of cases in which there is very serious evidence that people who did not commit the killing are being subjected to death warrants,” said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit group that tracks executions.

In at least one case, lawyers and family members have continued to push for new evidence long after an execution took place. On Monday, a Tennessee judge declined to allow DNA testing requested by the daughter of Sedley Alley, who was put to death in 2006 but claimed his confession was coerced. The daughter, April Alley, will continue to appeal and ask the state Supreme Court to grant permission.

Bryce Benjet, Reed’s lawyer, said he doubted that there were a higher proportion of innocent people on death row than in the past. But efforts to vigorously contest death sentences now reveal dubious convictions more frequently, he said, bringing to the fore examples of bad forensic science and other prosecution evidence that wilts under close examination.

“I don’t think the nature of the cases have changed,” said Benjet, a senior staff attorney at the Innocence Project who has represented dozens of death row inmates. “The nature of representation has changed.”

Here are other current cases where significant new evidence has surfaced. In each of them, prosecutors continue to argue that the accused was rightly convicted.

— Larry Swearingen

Swearingen was convicted of the 1998 rape and strangulation of Melissa Trotter, a 19-year-old first-year student at a community college north of Houston.

Evidence at trial

Authorities immediately suspected Swearingen, who was seen talking to Trotter on Dec. 8, the day that she disappeared. He was arrested three days later on unrelated warrants and charged with murder after her body was found on Jan. 2, 1999.

There were no witnesses to the abduction or killing. But prosecutors amassed circumstantial evidence that they said pointed to his guilt, including an anonymous letter he later admitted to have written from jail that contained information they said only the killer could have known. (Swearingen later said he had obtained the information from an autopsy report.)

The prosecution’s key evidence was one half of a pair of pantyhose recovered from Swearingen’s property. The state said it was a perfect match for another portion of hose that was used to strangle Trotter.

New for the defense

Blood was found under Trotter’s fingernails, raising the possibility that she and the killer had engaged in a violent struggle. DNA tests determined that the blood was not Swearingen’s and had come from another man who could not be identified. But a prosecution witness explained that away during trial testimony, saying contamination had probably muddied the results. This year, though, a state crime lab director questioned that explanation.

The timing of the death established at trial has also been called into question. The medical examiner testified that Trotter had been killed about 25 days before her body was found, placing the murder date on roughly the same day she disappeared. Since then, other experts have said the body was found within two weeks of death. The medical examiner also later said after reviewing additional evidence that she believed Trotter’s body had been dumped in the woods within two weeks of its discovery. Swearingen had already been in jail for 22 days when the body was discovered.

Doubts emerged, too, about the pantyhose. Other experts determined that the hose recovered from Swearingen’s property — found only after police had already searched twice, and after Trotter’s body was discovered — did not match the hose used to kill her.

Status of the case

Texas executed Swearingen on Aug. 21. His final statement was: “Lord forgive them. They don’t know what they are doing.”

— James Milton Dailey

Dailey was convicted and sentenced to death for the killing of Shelly Boggio, 14, whose body was found floating in the water near St. Petersburg, Florida, in 1985. She had been repeatedly stabbed, strangled and drowned.

No witnesses or physical evidence tied Dailey to the killing. His co-defendant, Jack Pearcy, told police that Dailey had committed the murder. Pearcy is serving a life sentence for his role in Shelly’s death. The case against Dailey, now 73, leaned heavily on the testimony of jailhouse informants who said Dailey had incriminated himself.

In 2017, Pearcy stated in an affidavit that he had killed Shelly alone. “James Dailey was not present when Shelly Boggio was killed,” Pearcy wrote.

At a later hearing, Pearcy admitted that he had signed the affidavit, but said some of it was untrue. He refused to testify about its specific contents, invoking the Fifth Amendment.

An inmate who was once incarcerated with Dailey also stated that he had heard two of the jailhouse informants who had testified against Dailey plotting to provide prosecutors with false information about him so that they would get reduced sentences.

A third jailhouse informant, Paul Skalnik, is a former police officer whose credibility has been called into question. The Tampa Bay Times characterized him as a “prolific informer” who had been used to help send four men to death row even though he had racked up more than 20 convictions, including for grand larceny by fraud.

Dailey was set to be executed on Nov. 7 in Florida, but last month a federal district judge granted a stay until Dec. 30, to allow newly appointed federal public defenders to research the case and file petitions.

— Richard Glossip

Glossip was convicted of arranging the 1997 murder of Barry Van Treese, the owner of a rundown motel in Oklahoma City that Glossip managed.

Prosecutors said Glossip had been stealing from the motel till and was afraid that he was about to be fired. They said he had enlisted Justin Sneed, a 19-year-old drifter doing maintenance work at the motel, to murder Van Treese in return for money.

The state’s case hinged on Sneed’s testimony against Glossip, in return for which Sneed, who admitted that he had committed the murder with a baseball bat, received a life sentence.

Prosecutors also highlighted Glossip’s behavior after the murder: In his first interview with police, for example, Glossip did not mention that Sneed had awakened him and told him about the killing. Glossip later said that he did not believe Sneed at the time.

No physical evidence tied Glossip to the murder, and his lawyers noted that Sneed had repeatedly changed his story before implicating Glossip. The lawyers later presented evidence that they said demolished Sneed’s credibility.

For example, Sneed’s cellmate before trial said Sneed talked extensively about the murder but never mentioned Glossip. Another inmate said that he had heard Sneed say he set Glossip up, and that he was “happy and proud of himself” for doing so.

Richard Leo, an expert on false confessions, also reviewed the case and stated that investigators had fed Sneed the theory that Glossip had masterminded the killing and that Sneed would be the scapegoat for the crime if he did not confess.

The state dismissed the statements by inmates who knew Sneed, saying “no one should believe the sworn word of ‘an admitted liar, drug abuser, and thief.’ ” Defense lawyers said it was hypocrisy to cite that rationale when so much of Glossip’s prosecution hinged on an admitted murderer testifying to avoid death row.

Shortly before Glossip’s scheduled execution in 2015, an Oklahoma appeals court voted 3-2 to deny a hearing to examine new evidence. One of the dissenting judges said that Glossip’s original trial was “deeply flawed.”

Glossip was about to be executed days later when Oklahoma’s governor granted a last-minute stay because the state had the wrong execution drugs. Oklahoma hasn’t executed anyone since then as the state revamps its procedures.

This article originally appeared in

Innocent on Death Row? New Evidence Casts Doubt on Convictions

The number of executions in the United States remains close to nearly a three-decade low. And yet the decline has not prevented what those who closely track the death penalty see as a disturbing trend: A significant number of cases in which prisoners are being put to death, or whose execution dates are near, despite questions about their guilt.

MGM Resorts International, which owns the Mandalay Bay hotel where the killer rented a room on the 32nd floor and stockpiled a cache of weapons, announced the settlement, ending litigation that had become a closely watched test case about liability in mass shootings.

The killer, Stephen Paddock, holed up inside his room and fired into the crowd of thousands of music fans as the night’s final concert began. It was the deadliest mass shooting in modern American history.

Thursday’s settlement appears to resolve litigation that had raised novel and significant issues of law, including how much liability large companies and property owners could face after a mass-casualty attack.

While there is often litigation after mass shootings — such as lawsuits that parents filed against the companies that manufactured and sold the semi-automatic rifle used in the 2012 massacre at an elementary school in Newtown, Connecticut — legal experts said the scope and nature of the litigation and the legal issues raised in the MGM case were without precedent.

Faced with potentially hundreds of lawsuits, MGM sued more than 1,000 victims in July 2018, in an aggressive but untested strategy to short-circuit the cases and shield itself from liability.

Robert Eglet, one of the lawyers for the victims, said Thursday that the settlement would be in the range of $735 million to $800 million and would cover “substantially all” of the lawsuits and claims against MGM related to the massacre.

“While nothing will be able to bring back the lives lost or undo the horrors so many suffered on that day, this settlement will provide fair compensation for thousands of victims and their families,” Eglet said in a statement, adding that the deal “represents good corporate citizenship on” the part of MGM.

Another lawyer for the plaintiffs, Craig Eiland, said that the settlement was expected to cover up to 4,500 people, which he said would include everything “from death cases all the way down to those who had PTSD.”

Passing the two-year statute of limitations for filing new claims — which happened this week — was critical to completing the settlement, Eiland added.

Depending on the settlement’s final cost, all of the money paid to the victims, or nearly all of it, will come from MGM’s insurers. The company’s coverage limit for this case was $751 million, so the most MGM will have to pay would be $49 million.

An independent claims administrator, who will need to be approved by a judge, will review medical bills and other expenses, as well as the circumstances of each victim, before deciding how much each will receive.

On Thursday, MGM’s chief executive, Jim Murren, called the agreement “a major step, and one that we hoped for a long time would be possible. We have always believed that prolonged litigation around these matters is in no one’s best interest.”

At first, MGM responded with a hardball legal strategy when claims poured in from the injured and the relatives of the dead, who accused the company of negligence in allowing Paddock to stockpile high-powered rifles and thousands of rounds of ammunition in his hotel room.

It had sought to block victims from recovering any money from the company, arguing that a little-known federal law passed in the aftermath of the Sept. 11, 2001, attacks meant that MGM enjoyed a shield from liability because the shooting qualified as an “act of terrorism” under that federal law’s expansive definitions.

Because of that — and also because a security firm hired for the music festival possessed a special designation from the Department of Homeland Security — MGM argued that its interpretation of the law meant that it should not have to pay damage claims to injured concertgoers.

The federal law is known as the Support Antiterrorism by Fostering Effective Technologies Act, or SAFETY Act. It was believed to be the first time that anyone had sought to use the law this way to defend lawsuit claims in the aftermath of a major mass shooting.

Last October, however, a panel of federal judges denied MGM’s attempt to consolidate the cases in one court, saying that because “the contours of this litigation are not yet apparent, centralization is inappropriate.” The question of whether the Safety Act shielded MGM from liability was never decided.

By February the two sides were in mediation, and by May, the rough outlines of the settlement had already been worked out.

Hotel Agrees to Settlement Over Massacre in Las Vegas

The company that owns a Las Vegas hotel where a gunman opened fire from his room onto a country music festival two years ago, killing 58 and wounding hundreds of others, agreed Thursday to pay up to $800 million to settle lawsuits filed by victims.

The company that owns a Las Vegas hotel where a gunman opened fire from his room onto a country music festival two years ago, killing 58 and wounding hundreds of others, agreed on Thursday to pay up to $800 million to settle lawsuits filed by victims.

The killer, Stephen Paddock, holed up inside his room on the 32nd floor of the Mandalay Bay hotel, which MGM owns, and then fired into the crowd at a country music festival below. It was the deadliest mass shooting in modern American history.

One of the lawyers for the victims, Robert Eglet, said Thursday the settlement would be in the range of $735 million to $800 million and would resolve “substantially all” of the lawsuits and claims against MGM related to the massacre.

Passing the two-year statute of limitations for filing new claims — which happened this week — was critical to finalizing the settlement, Eiland added.

The next step for the plaintiffs will be to have their cases examined by an independent claims administrator, who will need to be approved by a judge. The administrator will review medical bills and other expenses, as well as the circumstances of each victim, before deciding how much each person will receive.

It was not immediately known whether any of the victims who have filed claims will opt out of the settlement and instead take their cases to trial.

At first, MGM responded with an aggressive legal strategy when claims poured in from the injured and the relatives of the dead, who accused the company of negligence in allowing Paddock to stockpile high-powered rifles and thousands of rounds of ammunition in his hotel room.

It had sought to block victims from recovering any money from the company, arguing that a little-known federal law passed in the aftermath of the Sept. 11 attacks meant that MGM enjoyed a shield from liability because the shooting qualified as an “act of terrorism” under the law’s expansive definitions.

Because of that — and also because a security firm hired for the concert possessed a special designation from the Department of Homeland Security — MGM argued that its interpretation of the law meant that it should not have to pay damage claims to injured concertgoers. The federal law is known as the Support Anti-Terrorism by Fostering Effective Technologies Act, or SAFETY Act.

As part of its strategy to have the company declared immune from liability by funneling cases to a federal court where that issue could be litigated, MGM sued more than 1,000 people who had already filed cases or indicated an intent to pursue claims against the company.

Though the company’s lawsuits did not seek any money, the strategy stirred anger against MGM. Negotiations soon began with plaintiffs’ lawyers, and by February the two sides were in mediation. By May, the rough contours of the settlement had already been worked out.

All of the settlement — or nearly all — will be funded by MGM’s insurers, who have agreed to pay $751 million to resolve the cases. So the most MGM will have to pay out of its own pockets, depending on the final settlement amount, would be $49 million.

MGM Agrees to Pay Las Vegas Shooting Victims Up to $800 Million

MGM Resorts International has agreed to pay up to $800 million to settle lawsuits from victims of the October 2017 mass shooting in Las Vegas that left 58 people dead and hundreds of others injured.

One of the lawyers for the victims, Robert Eglet, said Thursday the settlement would resolve “substantially all” of the lawsuits and claims against MGM related to the massacre.

An independent claims administrator will review medical bills and other expenses, as well as the circumstances of each victim, before deciding how much each person will receive.

As part of its strategy, MGM sued more than 1,000 people who had already filed cases or indicated an intent to pursue claims against the company.

Though the company’s lawsuits did not seek any money, the strategy stirred anger against MGM.

<h1>The former FBI agent at the heart of a grand jury investigation into the chief prosecutor of St. Louis has been indicted on seven felony counts of perjury and tampering with evidence, according to documents unsealed Monday.</h1>

The former agent, William D. Tisaby, was hired last year by the city’s prosecutor, Kimberly Gardner, to help investigate accusations against the governor of Missouri at the time, Eric Greitens. Greitens was accused of threatening to blackmail his mistress with a photo of her partially clothed if she ever revealed their affair.

Tisaby interviewed the woman in January 2018 with Gardner present. During a sworn deposition two months later, conducted by Greitens’ lawyers, Tisaby made several false statements, including that he had not made any notes during the interview and that a video recorder had malfunctioned.

Gardner had indicted Greitens for felony invasion of privacy. But Tisaby’s problematic deposition testimony played a role in the dismissal of the case in May 2018. Lawyers for Greitens had filed a complaint accusing Tisaby of perjury with the St. Louis police. A special prosecutor was appointed to investigate.

Greitens’ lawyers also accused Gardner of knowing about and failing to correct Tisaby’s erroneous testimony, and of suborning perjury. Indictments of sitting prosecutors for manipulation of evidence are virtually unheard of, even if their actions have resulted in the incarceration of the innocent.

The indictment unsealed Monday accuses Tisaby of falsely stating under oath, among other things, that he had not taken notes during the interview of Greitens’ mistress, that he had not received information from Gardner about a previous interview with the woman, and that he had not sought help from computer or forensic experts in a search for the alleged photo in question.

The indictment says Gardner was aware of many of Tisaby’s false statements under oath — and that, in fact, she had given him notes from the previous interview — but did not seek to correct the record.

Tisaby’s lawyer, Jermaine Wooten, vowed to take the case to trial, saying his client was not guilty. “This case will not be pled down,” Wooten said.

A spokeswoman for Gardner said she could not comment because of a judicial gag order. But in previous legal filings, Gardner denied wrongdoing.

She has said that she turned over the disputed video and notes of the interview with the mistress to the Greitens legal team a month before his trial was to begin. Her lawyers have conceded, though, that Tisaby was untruthful and that relying on him was an “egregious mistake.”

Greitens’ lawyers claimed that the alleged wrongdoing was significant because the notes and video revealed major contradictions with the testimony the woman gave to a Republican-led state legislative committee, undermining her credibility and the criminal case against Greitens.

But that has been disputed by the committee and by another prosecutor who was appointed to review the case. Both said that the woman’s accounts were consistent and that she was a credible witness.

The indictment states that Tisaby’s false testimony concerned matters that “could substantially affect, or did substantially affect, the course or outcome of the Greitens case,” but does not say how.

The indictment did allege something new: that when Gardner turned over notes to the Greitens legal team of her earlier conversation with the mistress, she failed to disclose the last two pages of the document.

Greitens, a Republican, announced his resignation from office a year ago amid calls for impeachment from members of his own party, and as he was facing a second felony charge of misusing a charity donor list. That charge was dismissed as part of a deal that included his resignation.

The investigation into Gardner’s office has frustrated her supporters, who say it is an effort to drive her out of office because she has challenged the legal establishment and the police. The special prosecutor investigating Gardner’s office is a lifelong friend of the lawyer for Greitens who lodged the complaint with the police.

They have also pointed out that while the police were quick to seek a special prosecutor to investigate Tisaby, they were slower to investigate Gardner’s claim, filed last year, that several of Greitens’ lawyers had threatened her if she did not dismiss his indictment. The city’s law department notified Gardner’s office in April that the investigation of her complaint was complete and that the police would support pursuing a special prosecutor.

On Monday, a top official in the city’s law department, Michael Garvin, released emails showing that since then, part of the delay in pursuing that complaint has come from the city’s deference to Gardner’s aides. In the emails, an aide repeatedly says the office wants to pursue the appointment of a special prosecutor itself, and city officials deferred to that request.

Once a special prosecutor is appointed, Garvin said, the city’s lawyers will send the prosecutor the final investigative report.

This article originally appeared in <a href="https://www.nytimes.com/2019/06/17/us/agent-indicted-st-louis-prosecutor.html" target="_blank">The New York Times</a>.

Former FBI agent is indicted in a case involving St. Louis' prosecutor

Tisaby interviewed the woman in January 2018 with Gardner present. During a sworn deposition two months later, conducted by Greitens’ lawyers, Tisaby made several false statements, including that he had not made any notes during the interview and that a video recorder had malfunctioned.

Instead, the ruler will be: Bran Stark. Or maybe his sister Sansa. Or even Tyrion Lannister or Gendry. Sorry, Jon Snow. Notwithstanding your true lineage and moral courage, your odds of winding up on the Iron Throne are just not that good.

No, that’s not a spoiler. It’s the collective conjecture of fans who are wagering on who will come out on top when the blockbuster HBO series comes to an end after an eight-season run.

While experts say they do not know of any strictly legal means to bet on “Game of Thrones” in the United States, there has been plenty of offshore and European wagering that suggests what fans and bettors — including some who claim to have inside information — believe will happen this Sunday.

Betting lines may change before the final episode airs, subject to fan whimsy or whether more plot details leak. And some bookmakers have been pulling back, no longer willing to offer odds, given how much information about the finale already appears to be circulating.

It has been one year since the landmark Supreme Court ruling that allowed states to legalize full-scale sports betting and take a piece of a $150 billion-a-year business that for years had been largely limited to the black market and Nevada.

Fan fever over the final season of “Game of Thrones” has yielded a glimpse of the sort of market that could exist for entertainment betting. Online sites that have taken advantage of the ruling to offer sports wagers are eager to make markets for other pop-culture bets that aren’t about sports, especially entertainment wagers.

“Fandom is universal, whether it be for a sports team or a television phenomenon like ‘Game of Thrones,’ and America is on the verge of an experiential evolution in how consumers will engage with their favorite content,” said Jamie Shea, head of digital sportsbook operations for DraftKings, one of the major legal online betting platforms in the United States.

Yet “Game of Thrones” has also shown just how hard it may be to have wagering on scripted Hollywood productions that isn’t plagued by leaks, and the betting markets’ version of insider trading.

Plot twists, denouements and sometimes an entire episode can seep out beforehand, making for markets that unfairly favor those in the know at the expense of fans and aficionados putting down money based on their hunches or their own studied analysis of what might lie ahead.

Despite a great deal of effort by HBO to keep a lid on things, key details of recent “Game of Thrones” episodes appear to have dribbled out ahead of time.

Anonymous leakers on Reddit, for example, forecast that Daenerys Targaryen would kill Lord Varys, and one claiming to have had a relative working on the show accurately predicted that Arya would leap toward the Night King and slay him just as he was about to kill Bran.

One television provider, DirecTV, even dropped this season’s premiere to some customers hours before its scheduled airtime, leading to complaints from offshore betting sites that they lost money to sharpies who rushed to place bets on plot details from the first episode before the window for betting closed.

Some employees at streaming services and television providers that broadcast the show in more than 150 other countries also have a legitimate need to review episodes before putting them on the air. The show is typically sent out to them about 24 hours before its 9 p.m. Eastern Time Sunday slot, thus creating at least the potential for someone to place a well-informed wager beforehand.

Driven in part by comments an HBO executive made at a Pennsylvania college in 2017, some fans have speculated that HBO filmed multiple endings for the finale, ensuring that no one really knows for sure what will happen.

Last year, Emilia Clarke, who plays Daenerys, seemed to confirm the strategy, telling The Hollywood Reporter that there were “lots of different endings that could happen; I think we’re doing all of them and we aren’t being told which is actually what’s going to happen.”

In turn, some skeptics believe that all of that might just be misdirection from HBO to keep people from believing the inevitable leaks.

For now, the heavy favorite to rule Westeros is Bran, aka the Three-Eyed Raven, who is played by Isaac Hempstead Wright. Bran did not appear in last Sunday’s episode, unless you are among those who believe he “warged” into the horse that Arya rode at the end.

The closest to him in betting odds is Sansa, followed well behind by Gendry, Jon and Tyrion. After her deranged bout of pyromania, Daenerys has slipped way back. (Though she is heavily favored to die on Sunday, probably by the hand of Jon, her nephew and lover.)

As of this writing, the line for Bran to rule Westeros stands at -450 at one major offshore betting site. That means that for every $450 bet, the profit for a win would be $100. It is equivalent to 2-to-9 odds, meaning a lot of bettors are pretty certain Bran will sit on the throne.

Some bookmakers have cited suspicious patterns of betting, especially on Bran prevailing at the end. Last week, Irish bookmaker BoyleSports suspended wagers after the odds on Bran shortened from 2-to-1 (which implies about a 33 percent probability of winning) to 1-to-4 (an 80 percent implied probability of winning) in the space of just two weeks.

Paddy Power, a large bookmaker in the United Kingdom and Ireland that had been offering odds on the show’s final season since August, has stopped taking bets, too.

“At the moment we’re not taking bets at Paddy Power because, with the final episode approaching, we’re conscious that leaks are possible, and we’d be keen to protect the market and also avoid any huge spoilers heading into the conclusion of the biggest TV show maybe ever,” said a spokeswoman, Amy Jones.

She said “Game of Thrones” has generated the most betting Paddy Power has ever seen for anything on television, excluding the hugely popular Eurovision Song Contest.

Concern about leaks and inside information explains why fans haven’t been able to place bets on the show on legal online wagering platforms in the United States.

“The risk of a breach in the integrity of the betting is too high for regulators to feel comfortable with that,” said Jennifer Roberts, associate director of the International Center for Gaming Regulation at the University of Nevada, Las Vegas.

In Nevada, for example, state gaming rules place anything other than sanctioned professional or collegiate athletic contests into a category called “other events.” Wagering on those events must be approved by Nevada’s gaming control board, and only if the event meets seven criteria, including that the outcome “would be generated by a reliable and independent process.”

Several of Mississippi’s 23 regulated sportsbook operators asked state officials to allow them to offer wagers on “Game of Thrones,” but were told no. The state takes a dim view of entertainment wagers generally, said Ed Wong, an official with the Mississippi Gaming Commission.

“On top of that, because it’s a scripted event and there’s no telling how many people know the outcome, it creates the possibility of unfair wagering,” Wong said.

Who's your pick to sit on iron throne, Care to make it interesting

The “Game of Thrones” character who will rule Westeros at the end of the series finale on Sunday didn’t fend off the army of the dead with a sword in Winterfell. Nor did they lead the charge through the gates of King’s Landing during the scorching butchery of the last episode.

Who's your pick to sit on iron throne? Care to make it interesting?

After all, no one has claimed that the woman did anything more threatening than “spook” Noor and his partner when she approached their squad car in a darkened alley. The woman — a yoga instructor named Justine Ruszczyk Damond — was unarmed and wearing pajamas at the time. And it was her 911 call, reporting that a woman might be under attack in the alley behind her house, that had brought police to the scene in the first place.

Even so, legal experts say that prosecutors may have a tough battle on their hands to convince a jury that when Noor leaned over his partner and shot Damond in the abdomen, he was committing a murder. Here is why.

The Supreme Court says an officer’s actions can’t be judged with hindsight.

Every case of a police officer accused of using unreasonable force on the job, including Noor’s, is subject to a 1989 ruling by the Supreme Court in a case known as Graham v. Connor.

The court said that an officer’s actions “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” And that evaluation, the court added, must allow “for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”

That ruling flowed from another case four years earlier, Tennessee v. Garner, in which the court ruled that officers could use deadly force to prevent an escape only when they had probable cause to think that a suspect posed a significant threat of death or serious injury to them or others.

Taken together, the rulings mean that to get a conviction, prosecutors must prove that an accused officer did not legitimately feel threatened and that other officers would not reasonably have used the same force in the same situation.

In the Minneapolis case, Noor did not speak to investigators. But his partner has said that he had also unholstered his service weapon and perceived that his life was in danger after hearing a voice and a “thump” behind him on their squad car, and glimpsing a person’s head and shoulders about 2 feet outside his window. “We both got spooked,” he said.

Noor’s lawyers contended in their opening arguments that he had acted reasonably.

Murder prosecutions of officers are rare, and convictions are even rarer.

In part because of those court rulings, the overwhelming majority of police shootings are judged by prosecutors to have been legally justified under the circumstances, even if they seemed egregious to the public. And of the 98 U.S. police officers who have been charged since 2005 with murder or manslaughter for an on-duty shooting, according to Philip Stinson, a professor at Bowling Green State University in Ohio, prosecutors have secured convictions or guilty pleas of only 35, mostly for lesser manslaughter charges. Just three convictions were for intentional murder.

In Minnesota, at least 164 people died in confrontations with the police between 2000 and 2017, according to The Minneapolis Star Tribune, but only two officers have been charged in those deaths: Jeronimo Yanez, acquitted of second-degree manslaughter in the 2016 shooting of Philando Castile outside Minneapolis, and Noor.

Juries “take the position of, ‘Would an ordinary police officer who was not negligent and who was in the same or similar situation react the way this policeman did?’” said Joe Friedberg, a prominent criminal defense lawyer in Minneapolis. “That’s why, for the most part, policemen are acquitted.”

Judges and juries may give officers even more leeway than the Supreme Court did.

Stinson, a former police officer and lawyer, said that juries and judges often seem to take the Graham v. Connor ruling too far, forgetting that the standard is supposed to be what a reasonable officer would do, not what the accused officer said he felt was reasonable.

And defense lawyers, who ordinarily avoid putting their clients on the witness stand, often do the opposite in police shooting cases.

“Juries are very reluctant to convict officers who testify in their own defense that they perceived an imminent threat, whether their actions were objectively reasonable or not,” Stinson said. “As soon as the officer takes the stand, it seems that all the work the prosecutors have done is disregarded or given less weight by the trier of fact than the officer’s own testimony.”

Friedberg said he expects Noor to take the stand in the trial: “He’s going to have to testify that his state of mind was similar to his partner’s.”

Police officers have grown accustomed to that leeway.

Civil rights advocates say the Graham v. Connor ruling has not only made it harder to prosecute officers for using deadly force, but it has also made it more likely that officers will use deadly force in the first place. They say a generation of officers, trained to follow policies that reflect the ruling, have been inculcated with a very permissive approach to what is reasonable.

But the thinking behind those policies may be changing.

“There has been a fair amount of reflection, though much more is needed, around these issues, and in placing the sanctity of life at the center of use-of-force policies,” said Vanita Gupta, a former head of the Justice Department’s civil rights division who is now president of an advocacy group, the Leadership Conference on Civil and Human Rights.

A case in point: An influential group, the Police Executive Research Forum, has been urging departments to adopt policies that go well beyond those tailored to fit Supreme Court precedent. Police forces in New York City, Washington, D.C., and Los Angeles have already done so.

The group’s executive director, Chuck Wexler, said there was a growing awareness that the Supreme Court ruling had helped spawn many “lawful but awful” shootings that were legally defensible but “morally unacceptable.”

“Today, there is a recognition that Graham v. Connor is the floor, and not the ceiling,” he said.

This article originally appeared in <a href="https://www.nytimes.com/2019/04/09/us/politics/minneapolis-police-shooting-mohamed-noor.html" id="f22094ea-c8c8-38c0-ab67-7096654b540f">The New York Times</a>.

When opening arguments began Tuesday in the murder trial of Mohamed Noor, a former Minneapolis police officer who fatally shot a 40-year-old Australian woman while on duty in 2017, the prosecutors may have to hold most of the cards.

A Police Officer Shot a Woman in Pajamas. Here's Why It May Be Hard to Convict Him

After all, no one has claimed that the woman did anything more threatening than “spook” Noor and his partner when she approached their squad car in a darkened alley. The woman — a yoga instructor named Justine Ruszczyk Damond — was unarmed and wearing pajamas at the time. And it was her 911 call, reporting that a woman might be under attack in the alley behind her house, that had brought the police to the scene in the first place.

Even so, legal experts say that prosecutors may have a tough battle on their hands to convince a jury that when Noor leaned over his partner and shot her in the abdomen, he was committing a crime. Here is why.

Taken together, the rulings mean that to get a conviction, prosecutors must prove that an accused officer did not genuinely feel threatened and that other officers would not reasonably have used the same force in the same situation.

In the Minneapolis case, Noor did not speak to investigators. But his partner has said that he had also unholstered his service weapon and perceived that his life was in danger after hearing a voice and a “thump” behind him on their squad car, and glimpsing a person’s head and shoulders about two feet outside his window.

“We both got spooked,” he said.

With opening arguments expected Tuesday in the murder trial of Mohamed Noor, a former Minneapolis police officer who fatally shot a 40-year-old Australian woman while on duty in 2017, the prosecutors might seem to hold most of the cards.

A Police Officer Shot a Woman in Pajamas. Here's Why It May Be Hard to Convict Him.

The unusually powerful storm is expected to dump significant snow and rain on farms and floodplains that are struggling to recover from a historic storm three weeks ago that pummeled the Midwest and left wide areas swallowed by rising rivers.

The coming storm will hit with force Wednesday: Rain first, and then thunderstorms that will turn into heavy snow and squalls. Some forecasters believe this system could drop even more snow on the region than the one in mid-March did, as it moves slowly through the region. Parts of South Dakota, northeastern Nebraska and southern Minnesota could be whipped with wind gusts of up to 50 mph and may get a foot of snow — or maybe as much as 2 feet.

But there are reasons to hope that this round of foul weather will not be as devastating as the last. The air has been warmer — temperatures reached the high 70s in Omaha, Nebraska, on Monday — and the ground has thawed in many areas, so the soil, though still somewhat saturated, will be able to soak up more rain. And the storm’s overall intensity will probably not be as great.

In other words, this storm may in places appear to be a worse and more blinding blizzard, but forecasters hope that its effects will be less severe.

Of course, they caution that there is no way to predict flooding with certainty. And the forecasters point to a paradox this time around: The more snow, the better.

If most of the storm’s total precipitation falls as rain, the chances are greater that rapid runoff will swell rivers and streams dangerously — setting back efforts to repair dozens of levees that were overwhelmed last month.

But if the storm delivers more snow than rain, the runoff could take days longer. The snow would melt gradually as temperatures rise above freezing during the day and then dip back down at night.

“Snowfall will delay the amount of water coming in, and that could be a real benefit,” said David Pearson, a hydrologist with the National Weather Service in Omaha. “The snow just takes the edge off.”

“The amount the ground can soak up is limited, because it is so wet, but that’s a lot better than having it frozen, because frozen ground is like a parking lot,” Pearson added. “Water just flows right off.”

Overall, he said, the storm does not seem as powerful at this point as the March tempest, “but it still has a lot of moisture and lot of potential to cause a lot of problems,” he said. “It’s still going to pack a punch.”

Forecasters say that for a storm to officially qualify as a bomb cyclone, the atmospheric pressure must drop at least 24 millibars in 24 hours, creating a particularly strong and rapidly intensifying storm. This one might not produce quite that steep a pressure drop, they say.

But temperatures are set to plunge quickly just the same, as a low-pressure system drawing in moisture to the Midwest is displaced by a high-pressure system full of colder air. Omaha, for example, is predicted to see its daytime high temperature fall from almost 80 degrees Monday to about 40 degrees Friday.

The bigger flood risk this time may center on the Mississippi River and its swollen tributaries rather than the Missouri River, where levels have been receding, said Jeff Berardelli, a meteorologist.

“It will be a more prolific snow producer and a more blinding blizzard than the bomb cyclone was,” Berardelli said of the new storm, partly because it may idle over much of the Midwest for a time.

“It’s likely going to slow down and stall,” he said. “Literally, the storm will barely move.”

But like Pearson, Berardelli said that a higher proportion of snow than rain may be a good thing.

“If it melts over a longer period of time, that would be better,” he said. “We don’t want it all happening in a day or two.”

This article originally appeared in <a id="52eb4fbc-0dbd-3049-a6c8-0ed4f301ca5c" href="https://www.nytimes.com/2019/04/08/us/winter-storm-wesley.html">The New York Times</a>.

Powerful Storm Threatens More Misery in Flood-Hit Midwest

A storm bearing down on the Great Plains this week may or may not qualify as another “bomb cyclone.” But it will certainly be big.

Powerful storm threatens more misery in flood-hit Midwest

Now the man charged in his death, Eric Holder, is being represented by another Los Angeles figure: Christopher Darden, who became a household name when he helped prosecute — unsuccessfully — O.J. Simpson in 1995 for the deaths of Nicole Brown Simpson and Ronald Goldman.

Here’s a look at Darden, the man who famously asked Simpson to try on the bloody glove.

What has Darden been doing since the Simpson trial?

After leaving the district attorney’s office, Darden worked as a law professor, and was a co-writer on several legal thrillers as well as “In Contempt,” a behind-the-scenes account of the Simpson case that The New York Times called “powerful and affecting.”

The Times’ review noted the personal consequences that Darden said he suffered as Simpson’s lead lawyer, Johnnie L. Cochran Jr., manipulated the issue of race during the trial: “The defense lawyer’s suggestion that Mr. Darden was a token black recruited by the prosecution team for the color of his skin led to accusations, on the street, that he was ‘an Uncle Tom, a sellout, a house Negro,’ Darden says. He writes that he received death threats and was spat upon, and that his family, too, was harassed.”

Darden also became a defense lawyer and worked as a commentator on legal cases for a number of television networks.

Is it common for prosecutors to become defense lawyers?

Yes. Many law school graduates favor starting their careers as prosecutors. It pays less than some of them could make in private practice, but it provides invaluable court experience early in their careers, while their more highly paid law school classmates who take private jobs spend their time on legal research and helping more seasoned lawyers prepare cases.

Prosecution work also teaches them the ins-and-outs of plea bargaining and negotiations between lawyers, which is how the overwhelming majority of criminal cases are resolved. So when they hang a shingle to become a defense lawyer, they can immediately draw on years of experience as prosecutors.

Many of the criminal defense lawyers in any county seat are typically former prosecutors, while the best private lawyers who handle white-collar litigation and other expensive specialties often were once federal prosecutors. (Earlier in his career, Cochran had been a prosecutor in the Los Angeles County district attorney’s office.)

The killing this week of Nipsey Hussle, a rapper and advocate for the communities of South Los Angeles, sent a painful tremor throughout those neighborhoods and the music industry.

Richard A. Oppel Jr.

Articles written by the author

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