Different River

”You can never step in the same river twice.” –Heraclitus

December 19, 2005

An Innocent Man on Death Row

Filed under: — Different River @ 4:04 am

No, not “Tookie” Williams, who’s “innocent” only in the eyes of people who think it’s OK to kill Taiwanese immigrants. This is something competely different.

Radley Balko has this summary:

Sometime in late 2001, Officer Ron Jones collected a tip from an anonymous informant that Jamie Smith, who lived opposite [Cory] Maye in a duplex, was selling drugs out of his home. Jones passed the tip to the Pearl River Basin Narcotics Task Force, a regional police agency in charge of carrying out drug raids in four surrounding counties. The task force asked Jones if he’d like to come along on the raid they’d be conducting as the result of his tip. He obliged.

On the night of December 26, the task force donned paramilitary gear, and conducted a drug raid on Smith’s house. …

As the raid on Smith commenced, some officers – including Jones — went around to what they thought was a side door to Smith’s residence, looking for a larger stash of drugs. … The door was actually a door to Maye’s home. Maye was home alone with his young daughter, and asleep, when one member of the SWAT team broke down the outside door. Jones, who hadn’t drawn his gun charged in, and made his way to Maye’s bedroom.

Cory Maye was in that bedroom with his 18-month-old daughter. He shot and killed the man he thought was an intruder bent on harming his daughter or him — but who turned out to be a police officer looking for the next-door neighbor.

Cory Maye — who had reason to fear for his life, and who, no prior criminal record whatsoever, had no reason to believe someone breaking into his apartment would be a police officer — is now on death row in Mississippi.

Balko continues:

Police said at trial that they did announce themselves before entering Maye’s apartment — Maye and his attorney say otherwise. I’m inclined to believe Maye, for reasons outlined in this post. However, even if they did, announcing seconds before bursting in just before midnight, isn’t much better than not announcing at all. An innocent person on the other end of the raid, particularly if still asleep, has every reason to fear for his life.). Maye, fearing for his life and the safety of his daughter, fired at Jones, hitting him in the abdomen, just below his bulletproof vest. Jones died a short time later.

Maye had no criminal record, and wasn’t the target of the search warrant. Police initially concluded they had found no drugs in Maye’s side of the duplex. Then, mysteriously, police later announced they’d found “traces” of marijuana. I talked to the attorney who represented Maye at trial. She said that to her knowledge, police had found one smoked marijuana cigarette in Maye’s apartment. Regardless, since Maye wasn’t the subject of the search, whether or not he had misdemeanor amounts of drugs in his possession isn’t really relevant. What’s relevant is whether or not he reasonably believed his life was in danger. Seems pretty clear to me that that would be a reasonable assumption.

It apparently wasn’t so clear to Mississippi’s criminal justice system. In January of last year, Maye was convicted of capital murder for the shooting of Officer Jones. He was sentenced to death by lethal injection.

Let’s summarize: Cops mistakenly break down the door of a sleeping man, late at night, as part of drug raid. Turns out, the man wasn’t named in the warrant, and wasn’t a suspect. The man, frigthened for himself and his 18-month old daughter, fires at an intruder who jumps into his bedroom after the door’s been kicked in. Turns out that the man, who is black, has killed the white son of the town’s police chief. He’s later convicted and sentenced to death by a white jury. The man has no criminal record, and police rather tellingly changed their story about drugs (rather, traces of drugs) in his possession at the time of the raid.

Documents from the case are here.

Balko also quotes Mississippi’s murder and self-defense laws, which seem to make it clear that, from the facts that are not in dispute, Cory Maye did not violate the law:

Here’s the text of Mississippi’s “capital murder” law, for which Maye was convicted and sentenced to death:

“(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman…

Emphasis mine. The question is, did Maye know that Jones was a cop? I’ve yet to see trial transcripts or the police report, but Maye’s former attorney tells me that the police team conducting the raid insist they announced themselves before breaking into Maye’s apartment. The jury, I suppose, therefore concluded that a reasonable person in Maye’s position should have known that Jones was a cop.

Maye’s former attorney has her doubts. I have mine, too. There’s plenty of reason to suspect otherwise. First, it’s doubtful that Jones and the officer who broke the door down ahead of him announced themselves. It’s clear from the warrant that they weren’t even aware the target of the warrant was a duplex with a second, separate residence. What’s more, Jones stormed Maye’s bedroom unarmed, a pretty clear indication that the police didn’t believe someone else was taking up residence there. Why would a cop announce if (a) the SWAT team has already apprehended the subject of the raid, and (b) the entering cop desn’t suspect there’s anyone else in the room he’s entering?

Second, even if Jones or another officer did announce themselves, there’s still penty of reason to think a reasonable person in Maye’s position could still not have known the invaders were police.

It was late at night. It was dark. And Maye was frightened. Further, given that Maye wasn’t a criminal, wasn’t a drug dealer, and wasn’t the subject of the warrant, you could make a pretty good case that a guy like Maye would assume that anyone breaking down his door in the middle of the night would be anybody but a cop. He certainly hadn’t done anything to merit such a violent apprehension. Instead, a reasonable first reaction would have been to assume it was an intruder about to do him or his daughter harm.

Which brings us to self-defense. Maye’s actions didn’t meet a capital murder charge on its face. But he also had the right to defend himself, his daughter, and his home. Here’s Mississippi law on justifiable homicide:

(1) The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:


f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished…

Put yourself in Maye’s shoes. You have no criminal record. You’ve done nothing wrong. In the middle of the night, in a bad neighborhood, you awake to find someone attempting to break down your door. The door flies open, and a man in black paramilitary gear comes storming into your bedroom, where your infant daughter also happens to be sleeping.

Not only is that set of circumstances “reasonable ground” to think that someone is about to do you “great personal injury,” and that you’re in “imminent danger” of said personal injury being accomplished, you’d be crazy not to take quick action to defend yourself.

The SWAT team was in Maye’s home illegally. And they failed to exercise due dilligence in obtaining the search warrant, given that they were obviously unaware that the target of the warrant was a duplex with a second residence. These are facts.

I’d argue that the town of Prentiss, and the men who executed the warrant owe Maye compensation. Lots of it. Instead, we’re arguing about whether Maye ought to be put to death for defending himself.

Something’s very wrong, here.

Here’s another interesting tidbit:

[S]everal people have asked about a legal fund, and about the adequacy of Maye’s current counsel. I don’t know about any defense fund, and I’m neither qualified nor the appropriate person to start one up. Should one get going, though, I’ll be sure to post the details. When I called the Mississippi ACLU shortly before putting up the first Maye post, they had never heard of his case. Perhaps they’d be the most likely source of competent representation for him.

Now, is it really reasonable to believe that there is a disputed death penalty case in Mississippi, and the Mississippi ACLU has never even heard of it? That’s really strange. That’s really, really strange.

The national media doesn’t seem to have taken any interest in the case, either. Keith Boykin thinks this is because Maye is black and the dead officer is white. But that doesn’t sound right to me; normally the media folks love a story with a racial angle like that — as does the ACLU.

What’s different about this case is that anyone taking the side of Cory Maye is taking the side of the right to self-defense, and by implication supporting Second Amendment rights.

And if there’s one constitutional right the ACLU opposes, and most of the national media opposes, it’s the Second Amendment right to keep and bear arms. They are not going to support Cory Maye, because that would undermine their position in support of gun control and against the right of self-defense. In their book, it’s OK, or at least forgivable, for Tookie Williams to muder a white convenience store clerk and three Taiwanese immigrants — but to be so uppity as to defend your own home and family is the only crime worthy of the death penalty they oppose for actual criminals.

Follow-up: Silent Running has an open letter to Governor Haley Barbour and Orin Kerr at Volokh Conspiracy and Kieran Healy at Crooked Timber have some comments as well.

And, lest you think the solution is not to have a gun and/or not to shoot intruders, that won’t protect you either. The Last Blog reports that under similar circumstances “The Denver Police killed the wrong man because not only did they misidentify the victim the mistook a soda can for a weapon.”

One Response to “An Innocent Man on Death Row”

  1. Different River Says:

    More on Cory Maye
    Radley Balko is continuing to dig up more information on the case of Cory Maye case, the man who shot someone who broke down his door and rushed his daughters bedroom — and is now facing the death penalty because that someone turned out to be a police…

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