Law & Order Generation: The Injustice of Indifference
“The highest reach of injustice is to be deemed just when you are not” -Plato
Colorado Springs, CO -- (ReleaseWire) -- 05/23/2016 --We're all familiar with the popular television series. An entire generation of Americans has sat transfixed as, night after night, a dedicated team of police officers and prosecuting attorneys chase down a never-ending chain of child molesters, murderers and rapists. They are the perennial good guys, continually frustrated by the manipulations of clever defense attorneys who avail themselves of dirty tricks and legal loop-holes and the bad guys get away.
As in so much else in our society the fictional and the factual have become so intertwined that we can no longer distinguish between the two. Yes, sometimes clever lawyers and legal loop-holes allow the guilty to go free, but just as often they send the innocent and the not-so-culpable to prison for very long periods of time.
Yet, one would hope that that average citizens can still recognize the difference between an injustice and the meting out of a deserved measure of justice. It is our hope that in the midst of our visceral and unthinking "War on Crime" we might yet have the capacity to reflect and consider. It is in that hope that we invite you to look at the case of Staff Sergeant Cory Griffin and further invite you to turn off your television sets and participate in that most fundamental of American occupations—the tradition of pursuing and fighting for the truth.
In a previous media release entitled, "Justice for Vets: Playing with Heroes for Fun or Profit" USJAG covered SSG Griffin's case. What follows is a more in-depth review of the details surrounding the offense for which he was charged in 2014.
The Incident and the Participants
Staff Sergeant Griffin is a twenty-seven year old man who served in the United States Army for eight years. During the course of his service he spent 12 months in Iraq, 9 months in Afghanistan and another 8 months in Qatar on a classified assignment, guarding a high-value asset. He spent additional time in Germany and at various state-side duty stations, including Ft. Carson.
On November 10, 2014 the Fountain Police Department responded to emergency calls at Mr. Griffin's residence. There are specific elements of the narrative that are largely consistent. We know for sure that a .40 mm handgun discharged, wounding the victim Nathan Dragovich, fellow soldier and friend of Mr. Griffin, in his right thumb. We know that everyone had been drinking, including the other two parties present, Mrs. JenaRae Griffin and the girlfriend of Mr. Dragovich. We know that the four people present all knew each other well. We know that Mrs. Griffin, when she called dispatch, screamed that she believed her husband intentionally shot Mr. Dragovitch. We have blood spatter evidence. We have the trajectory of the bullet, though the bullet itself was never found. We have the police statements around the details of the crime scene.
We know that Mr. Dragovitch went to the Hospital Emergency room and initially refrained from providing police with information relating to what had occurred that evening. We know that when Mr. Griffin was arrested the police charged him with two offenses; 18-3-202(1)(a) Assault in the First Degree and 18-12-106(1)(b) Prohibited Use of a Weapon. We know that Mr. Griffin went peaceably with the police and that he had been curled up in a ball in the closet when the police arrived. These are the facts at the scene of the event, yet from here things get murky and we are left to ask many questions.
Intentional Shooting or Accidental Discharge of a Firearm
Perhaps the most critical consideration of all in this case relates to whether or not the shooting was intentional or accidental. So, let's look at that distinction carefully. There were three people immediately present when the weapon discharged; Cory Griffin, Nathan Dragovich and JenaRae Griffin. Mr. Griffin indicated to officers that he didn't remember the incident.
Nathan Dragovich initially with-held information regarding who shot him and why, explaining later that he simply wanted to cover for his friend—but he also noted later that he attempted to grab the weapon from his friend's hand and that in the process it discharged. JenaRae Griffin imparted that she grabbed the gun from her husband's hand post-discharge and that the shooting had been, in her call to the police, intentional. So, what happened here, really? " Dragovich suddenly and abruptly, while passing behind Griffin's wife, threw his hands up while shouting WTF! " startling Griffin, resulting in an accidental discharge of the weapon. An instance of a classic startle response seen in cases of severe PTSD .
Dragovich's recounting of the event is seemingly at odds with JenaRae's. Who grabbed the weapon? That is kind of important, isn't it? It is important for it's the difference between an intentional shooting and the accidental discharge of a firearm. In this case that's an important consideration.
Let's look at this in a bit more detail. In JenaRae's statement after the event she noted that Cory went upstairs. She had come downstairs from the second-story bedroom as her husband and Dragovich had been talking in elevated tones. Her husband had gone upstairs and, after a short interval, she went back up to see what he was doing. On ascending the stairs she stopped as her husband was inside their bedroom with a pistol in his hand. She later noted he had a blank stare on his face she had seen before. JenaRae was on the stairs, Dragovich behind her. Dragovich raised his hand, Griffin saw motion and fired a shot, hitting Dragovich in the thumb. More than one experienced Psychiatrist described what took place as a classic startle response, common to combat veterans diagnosed with Post-Traumatic Stress Disorder (PTSD).
Multiple mental health professionals and members in SSG Griffin's unit, Letter from Commanding General, Ft. Carson, averred their belief that his behavior that evening was reflective of a dissociative break, what is now commonly referred to as a "flashback".
Combat Veteran Attempts Murder at Close-Range Hits Thumb
The discharge was accidental. How can we know what happened? Well, forensic evidence would be great, wouldn't it? If we had a Gun Residue Testing kit for Dragovich, for example, we would be able to determine how close the victim was. Unfortunately, no GSR kit was used on the victim. Then there's the little problem that the wound to Dragovich's thumb was on the outside of the hand. Awkward. Then there's the additional, and also awkward, changing in Dragovich's statement over time. Did he or didn't he grab the pistol? After the event Dragovich and Mr. Griffin continued to amicably exchange text messages. Both lamented the incident. JenaRae continued to have amicable exchanges with Dragovich's girlfriend, now wife. The content and tenor of the exchange between the four parties involved hardly presents itself as one that would take place between the victim of an attempted murder and the guy who shot him.
Arresting Officers did not charge Mr. Griffin with attempted Murder. All parties involved continued to have friendly discourse following the event. A range of professional soldiers, mental health professionals and yet, the District Attorney chose to charge Mr. Griffin with Attempted Murder. Unconcerned with a close consideration of all evidence in the case, he focused on obtaining a conviction. So what if that meant sending a young soldier to prison for 40 years.
There's another critical, common sense consideration here: the Military Occupational Specialty (MOS) of SSG Cory Griffin–he was 19 Delta, a Cavalry Scout who also served on a sniper team in Afghanistan. He was a Sharpshooter. If you ask no other question about this case, ask this one: Does it make any sense at all that a man who served in some of the most dangerous places on the planet as a sniper would miss an intended target at close range? For those of us with any respect or any experience in the US military know, if a highly-trained US Army Sniper had intended to kill a man at close range, he'd be dead.
Crime Scene Investigation: Television vs. Reality
We are accustomed to the high-tech, thorough crime scene investigations as they are depicted on television, but such depictions are often very far from what actually happens. In this case District Attorney Dan May built his entire case around two elements; motive and some rather flimsy evidence. The motive was largely construed from statements by the alleged victim who later related that Mr. Griffin had become angered due to a remark he made about having an affair with Mr. Bueskings neighbor's wife, where Dragovich was then residing—and later noted he made the remark in jest. So, the motive was ostensibly jealousy. The evidence was shoddy or was not reviewed properly by either the Prosecution or the defense. Consider the following;
The bullet was never located. It exited the side of the Griffin's residence and entered into the side of the house next door. Police knocked on the door that evening, no one answered and they never bothered to return to collect this piece of evidence.
A statement from the girlfriend of Dragovich. They called, she didn't answer and the police didn't bother to track her down and get a statement immediately–a rather important omission or error.Video-taped statements from all of those present: Basic police procedure.
Gun-Shot Residue (GSR) testing kit for Dragovich–which, had it been conducted–would clarify how close the victim was when the weapon discharged. This evidence alone would have clearly verified distance–and distance here is the difference between two very different versions of events, as well as, the difference between an accidental and intentional shooting.
Fingerprint tests from the barrel and the grip of the weapon used. This would have helped corroborate who grabbed the gun as versions of what happened varied greatly.
The cell phone records, text and voice, from the phones of all those involved--this would have provided a level of clarification around the varying versions of events.
A careful examination of the forensic evidence around the trajectory of the shot and a comparison of that trajectory with the blood spatter patterns present against the different versions of what took place.
Recorded interviews with all medical staff at the hospital who attended to Dragovich the evening of the shooting.
Photos of the gun-shot wound when police did speak with Dragovich some time after the event. What officers did note was that Dragovich had photos of the wound and that he would "send them later".
The police never interviewed the next door neighbors. This would also be important if you wanted to affirm or debunk whether or not the victim's joke about an illicit affair had any basis in fact or whether or not they had overhead anything the night of the shooting.
Interviews with the soldiers with whom both Dragovich and Griffin served to determine whether either party had divulged information of interest germane to the facts of the case.
In short, some very basic police work did not occur in this case. The Federal Bureau of Investigation sets forth basic protocols and procedures for crime scene investigation and those were clearly not followed in this case. The prosecution based its entire case around two rather elements;
The call from a wife who had been drinking, awakened and whose husband had just shot a friend in the thumb, and, the recounting of the incident by the victim, Dragovich. A very basic consideration in any investigation revolves around the totality of circumstances in a given case. Aside from the evidence in the case out-lined above other elements should have also been taken into consideration. In trying to sort out the differing versions of what transpired and whether or not the shooting was accidental or intentional the veracity of all parties' versions should have been scrutinized to some degree and that would include some consideration of both the previous conduct and histories of all present. Also of some importance was the fact that SSG Griffin was never read his rights under Miranda.
While every soldier in SSG Griffin's command provided statements as to his exemplary service record and high level of personal character none could be found to offer such support for Dragovich. There are some character issues here: Dragovich had a prior criminal history. If you're a prosecutor who is looking at the 'totality of circumstances' the veracity of versions of events should be of some importance
An Ill-Prepared Defense and an Overzealous Prosecutor
Compounding the problems in this case would be the poorly prepared legal defense offered by the Griffin's attorney for the defense, Kent Freudenberg. When a defendant whose life's at stake plops down thousands of dollars to hire a lawyer the expectation is that a legal defense which might be deemed energetic will be the result. Not in this case.
Let's look at one instance of the sort of legal defense which occurred in this case: On June 12, 2015 this case came up for a proceeding before the Hon. Barney Iuppa. The People were represented by DDA Cecil. Firstly, Attorney Freudenberg is reminded by the Court which Division his case will be presented in–Division I and not Division V. Attorney Freudenberg discusses withdrawal of plea and entry for evaluation of mental capacity. The People counter with notice that the Defense did not comply with Statutory provisions around the raising of the issue at initial arraignment and what constitute's "good cause" for later introduction. For anyone reading the court transcript of this proceeding it's very difficult to characterize the defense as "prepared".
On the prosecution side of this case the charge of Attempted Murder was clearly over the top–the charge carries a potential 40 year sentence. But the prosecutor was doing what prosecutors have become accustomed to doing; conviction, conviction, conviction. Let's get a conviction for the most serious charge possible. Let's over-charge and engage in horse-trading in the plea process: Let's ask for 40 and settle for 15 then tout our "toughness on crime" and pander to public fear and ignorance. This is not an episode of Law & Order, this is real life and such scenarios play out in our court-rooms on a daily basis. The concern over the rendering of a measure of justice overall for the good of public safety falls to the wayside–the focus falls on getting away with what you can.
Dialing it Back: Egos or Justice
At this juncture this case has devolved to that point where the rendering of justice has gotten lost and the clash of egos and reputations has assumed precedence. The sentencing hearing for SSG Griffin will be held on May 26, 2016 in Colorado Springs. He faces 5-16 years in prison. What would be the right thing to occur here? That withdrawal of the guilty plea take place, that the District Attorney set aside his opposition to this soldier's admission to Veteran's Court and that this young man get the help he has earned for the costs paid in service to his country.
Griffin, following his arrest in 2014, has been in the community for most of the intervening period. He began assessment for his Post-Traumatic Stress Disorder (PTSD), has complied with all direction given by the court and, by all accounts he is doing well. By all accounts, he poses no threat. Sending him to prison has nothing to do with enhancing public safety and the proposed sentence is far too severe for the offense he committed. Costly, nonsensical, inappropriate. He would not only leave behind an extended family, but also a wife who is pregnant and a child who may never know her father during the majority of her childhood. This has nothing to do with "justice".
Additional Information of Interest, DA's Office in Colorado Springs
Members of the public generally view District Attorneys with an implicit trust--they are the servants of both the people and the interests of justice. An e-mail exchange between Defense Attorney Kent Freudenberg and Brien Cecil--Assistant District Attorney (ADA) assigned to this case--displayed a rather brazen level of bias (the e-mail is attached here). Officers of the Court should rely on those with expertise in cases where proceedings might be influenced by mental health or capacity. In this case, five highly qualified mental health professionals, as well as, a number of military professionals all concurred that SSG Griffin's combat-related PTSD was a critical consideration in terms of mitigating what all believed to be an accidental shooting. ADA Cecil is not qualified to render a professional assessment of SSG Griffin's mental health or the role that played in the incident in question. But his lack of expertise didn't impede his personal bias in his prosecution of this case. Inaccurate statement? Well, read the attached e-mail and decide for yourselves.
Obtaining a conviction and not the delivery of a mindful justice rules the roost at the Office of the El Paso District Attorney Dan May in Colorado Springs. This is not the first occasion when May's Office has come under scrutiny for questionable prosecution of a criminal case;
Judge lambastes Colorado Springs prosecutor after third courtroom error in 6 months
El Paso County District Attorney Tries to Block Wrongly Convicted Colorado Springs Man From Receiving Restitution
Court finds government misconduct tainted Colorado death penalty case
A reason to kill the death penalty in Colorado
About The Uniformed Services Justice & Advocacy Group
The Uniformed Services Justice & Advocacy Group's Georg-Andreas Pogany and Robert Alvarez have been closely involved in the case of Staff Sergeant Cory Griffin. The Veteran's Advocacy Group is based in Colorado Springs and well known for its advocacy on behalf of combat soldiers and veterans at the intersection of civilian and military justice systems. USJAG, the family and friends of SSG Griffin, local veterans groups and active duty military personnel will be attending the Sentencing Hearing of on May 26, 2016 and exhort supporters to attend. Details on the location and time of the hearing may be found here;
Stand by SSG Cory Griffin: If not this soldier for Veteran's Court then who?
Guy Gambill 5-22-2016
Media Relations Contact
Chief Operating Officer
Uniformed Services Justice & Advocacy Group
View this press release online at: http://rwire.com/691415