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The Brief

Incriminating Videos are the Common Thread in Five Headline-Making Criminal Cases

Gregg is joined by veteran trial attorney Brian Claypool

It was a seminal moment.  March 3, 1991.  The horrific beating of Rodney King was captured on a hand-held Sony camera operated by a 31-year-old plumber.  The visual savagery immediately went viral and served as the chief evidence in the prosecution of four LAPD officers.

Ever since video has played a vital role in criminal cases everywhere.

The advent of cell phone cameras, police body cams, and community closed-circuit television (CCTV) cameras has only increased the prevalence of criminal activity caught on tape —or, these days, digital.  Civil libertarians may decry the intrusions, but anti-crime advocates exalt their value.

Regardless, the presence of cameras everywhere in our urban landscape has dramatically altered what happens inside courtrooms.  Eyewitnesses sometimes lie, misperceive, or forget.  But images don’t.

Five criminal cases have recently gained national attention.  There is a common denominator in every one of them: technology incriminates the accused.

1.  Several cameras witnessed five cops beating to death motorist Tyre Nichols on a Memphis street.

2.  Video caught an intruder in the act of striking the head of Paul Pelosi with a hammer in his San Francisco home.

3.  A cell phone recording places disgraced lawyer Alex Murdaugh at the scene of the gruesome double murder of his wife and son in South Carolina.

4.  Videos implicate four young men in the rape of college student Madison Brooks who was then left on a Louisiana highway and run over.

5.  The cell phone of defendant Brian Kohberger and surveillance cameras are key pieces of evidence in the murders of four Idaho students who were viscously stabbed to death in their home.

These criminal prosecutions will invariably turn on the importance of visual images, voice recordings, cell phone pings, and surveillance cameras that inculpate in various ways all of the defendants.  Without such digital documentation, convictions would be far less likely and our communities less safe.

Tyre Nichols Case

There is no mistaking what we have all seen with our own eyes —the unjustified and barbaric beating of a defenseless young man who’s only offense was to supposedly drive his car in a reckless manner.  When stopped by an elite group of cops ominously called “the Scorpion unit,” Tyre Nichols was violently yanked from his car and thrown to the ground as if he was a serial killer.

Five officers were then seen on police body-cams and a static pole camera delivering a sadistic beating of Nichols that caused such extensive internal bleeding he later died.  They took turns hammering him with batons while screaming profanities, standing him up and punching him in the face, and booting him in the head with the force of a 50-yard field goal kicker.

As Nichols lay dying, the same thuggish officers exchanged fist-bumps, bragged about their handiwork, and generally yucked it up.  More than fifteen minutes elapse as Nichols’ life ticks away while slumped against a car, but none of the cops give a damn.  They are a collective disgrace to the badge they wore that night.  Summarily fired from their jobs, they now face second degree murder charges that are richly deserved.  If convicted, they could spend between 15 and 60 years in prison.  I’d give them the max.

In Tennessee, the intent to commit serious bodily injury resulting in death constitutes murder in the second degree.  The cameras show depraved indifference to human life.  Cops crushed Nichols like an insignificant bug as he called out in vain for his mother who lived nearby.  He was merciloussly tortured with fists and kicks.

The cops broke every rule in the book and violated every single duty they were sworn to uphold.  They failed to de-escalate the initial confrontation.  Instead, they elevated it.  Acting like Keystone Cops, they clumsily failed to properly control and subdue the suspect.  They failed to utilize the minimal amount of force necessary under the circumstance.  Other officers failed to intervene to stop the excessive force.  Finally, they failed to render aid to a severely injured and dying man.

Some have suggested that these officers were insufficiently trained.  Hogwashed.  They were well trained but chose to ignore all training.  They abandoned human decency. Their mob mentality was fueled by rage.  You could almost hear them say to Nichols, “How dare you resist or runaway!  Now you’re going to pay for it —with your life!”  That is the truth of what happened that terrible night.

The ugliness of their anger is plainly depicted on the video.  Without the cameras, the cops would have likely invented some phony alibi to somehow justify sickening behavior.

Paul Pelosi Case

Talk about getting caught red-handed.

The door to the San Francisco home of then-House Speaker Nancy Pelosi and her husband swings open and there stands 82-year old Paul Pelosi trying to wrestle control of a large hammer from a much younger intruder, David DePape.  Seconds later, the assailant swings the hammer at his victim’s head.  He falls to the ground in a pool of blood as cops tackle the attempted murderer.

All of it was captured on an officer’s body-cam.  The unprovoked bludgeoning proves without a doubt the defendant’s guilt on charges of attempted murder and assault with a deadly weapon.

The incontrovertible evidence notwithstanding, DePapa might not be found guilty.  How so?  With no way out, he will surely changed his plea from “not guilty” to “not guilty by reason of insanity.”

Under California law, a person is considered legally insane if he suffers from a mental disease or defect so sever that either he cannot understand the nature of his criminal act or cannot distinguish right from wrong.  It’s called the M’Naghten Rule.

The burden of proof is not on the prosecution to prove sanity, but on the defense to prove insanity by a “preponderance of the evidence.”  That is, it was more probable than not that DePape was insane at the moment he committed the crime.  If this defense prevails, he will be sent to a mental institution instead of prison.

You can expect the defense team to hire one or more psychiatric experts who may tell the jury that DePape was schizophrenic or suffered from paranoid delusions or some such thing.  That is standard fare in a case like this.  But it’s a long shot.

Only about 1% of criminal defendants invoke the insanity defense.  Of those, very few succeed.  But liberal San Francisco juries tend to be amenable to insanity or diminished capacity defenses.  The ludicrous “Hostess Twinkie Defense” prevailed in the twin murders of Mayor George Moscone and Supervisor Harvey Milk more than four decades ago.

So who knows what cockamamie excuse DePapa’s lawyers will invent when their client comes to trial?  But their options are limited thanks to the indelible video of the crime.

Alex Murdaugh Case

The once powerful South Carolina lawyer, Alex Murdaugh, is on trial for gunning down his wife and son, Maggie and Paul, in a double slaying that has captivated a nation fixated on true crime dramas.

Perhaps the most damning evidence against the defendant is a video recording from Paul’s cell phone that places the defendant at the murder scene —the family kennels on their estate— at 8:44 pm.  Alex’s voice can be heard in the background nearby.  Five minutes later, the phone is locked for the final time.  No more activity.  Shortly thereafter, both mother and son are slaughtered in a hail of gunshots.

The cell video/audio is highly incriminating because the accused led investigators to believe that he was nowhere near the kennels before the murders.  And yet, there he was at the location of the crimes just before they happened.  Without the cell phone, prosecutors would never be able to prove that the defendant was at the crime scene in a time frame consistent with the killings.

There is other compelling evidence, to be sure.  Blood was collected from inside the driver and passenger sides of Murdaugh’s Chevy Suburban.  If it matches the victims, it would support the prosecution’s theory that the defendant murdered his wife and son, drove back to the main house to clean up, but inadvertently transferred trace amounts of their blood spatter to the inside of the vehicle.

It is also suspicious that Murdaugh was uncontaminated from head to toe when he was interviewed by police shortly after the bodies were discovered.  No apparent blood on his hands, arms, shirt, shorts, and shoes.  Yet, the defendant told police that he touched both blood-soaked victims while checking their pulse.  It seems impossible that that there was not a speck of blood on him, unless he had carefully sanitized his body and changed clothes before police arrived.

The lack of footprints or knee prints around his son’s body is equally curious.  Indeed, it’s inconceivable if the father knelt next to Paul’s body in a pool of blood and tried to turn him over, as he informed police.  And what happened to Murdaugh’s missing gun?  Does the ammunition confiscated from his house by investigators match the ammo used in the murders?  All of this will likely unfold as the trial progresses.

But the cell phone audio may prove to be the pivotal piece of incriminating evidence.

Madison Brooks Case

Both surveillance and personal cell phone videos are an integral part of the prosecution’s evidence in the rape and subsequent death of 19-year old LSU student Madison Brooks.  Security cameras and eyewitness statements show she was stumbling and unsteady while drinking for hours in a bar.  At one point, she had to be helped to her feet after climbing down from a stool.

Four young men gave Madison a ride home in the back of their car where she was allegedly raped by two of them.  Under Louisiana law, it is considered a crime to have sex with someone who is “mentally incapacitated” due to excessive alcohol consumption and unable to consent.

Brooks’ blood alcohol content was determined to be 0.319 percent, which is nearly four times the legal limit for driving and close to unconsciousness.  A post-mortem showed injuries consistent with a forcible sexual assault attack.  The driver admitted to police that Madison appeared drunk, slurred her words, and was unable to keep her balance.  When asked by investigators if Brooks was too impaired to consent, he reportedly replied, “I guess.”

One of the men in the car took a partial video from inside the vehicle.  A lawyer representing two of the defendants claims it proves Brooks was intoxicated but coherent enough and capable of consenting.  Given her blood alcohol level, I seriously doubt it.  The judge who handled the bond hearings reviewed the same video and concluded that the “evidence was clear” that crimes were committed.

Madison was dropped off in a dark area of a highway where she was struck by a passing vehicle and died hours later in a hospital.  The driver of that car was not charged.

Once again, the various videos will play a crucial role in determining guilt at the time of trial.

Brian Kohberger Case

The brutal murders of four University of Idaho students will turn on DNA evidence, a tan leather knife sheath left behind, and cell phone records of the accused, Brian Kohberger.  Also, several video cameras place a vehicle identical to the defendant’s car near the crime scene multiple times on the day of the attack and fleeing the area “at a high rate of speed” shortly after the killings.

The cell phone data places Kohberger near the victims’ residence at least twelve times leading up to the murders, as if he was “casing” their house and stalking his planned targets.  During the crucial time period when the occupants were stabbed to death, the defendant’s phone was turned off.  Prosecutors reason that he was trying to avoid detection by concealing his precise location.  Just a few hours later, his phone was reactivated and he returned to the scene of the crimes.

Kohberger’s DNA on the knife sheath and other blood evidence from the victims connects him to the crimes, say prosecutors.  The value of science cannot be underestimated.  But his own electronic device serves as corroborating evidence that will likely lead to his conviction.  It offers a powerful cellular timeline of incriminating conduct.

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