Now that we have some facts about ND...
by bruinponcho on Nov 23, 2009 6:06 PM PST
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PrintND's arrest on Friday has made for a great weekend for everyone who enjoys speculating and making up different situations (I won't call them strawmen arguments, since they are at least partially valid) with which they can support their view. Some people have both intentionally or unconsciously linked their dislike for ND's basketball performance with what they felt should be the proper response to ND's legal situation.
Thankfully, now we finally have some concrete facts to evaluate and move forward on. The LA Times reported today the district attorney's view of the event:
According to prosecutors, Stanisic [ND's friend] began arguing with another man and his girlfriend during the concert by Daniel Johnston. Afterward, Dragovic allegedly rushed the victim and pushed him into the case, prosecutors said. As the two men were on the ground, Stanisic allegedly began punching the victim until security and bystanders broke up the fight, prosecutors said.
Unsurprisingly, ND's attorney has a different view of the event:
Telling another side to the story, Artz said the man followed Dragovic out of the Henry Fonda Theater and allegedly claimed to have a knife.
"He was the aggressor," Artz said. "He was drinking heavily. He slapped Dragovic's roommate."
Now, I'm not a criminal defense attorney or a prosecutor (and don't really want to go on westlaw to look it up, but if someone does, by all means go for it), but if I remember Crim Law correctly, it would appear that the reason that ND was charged with a felony here was because of the glass case (which shattered) is an instrumentality that could cause substantial bodily harm. If ND had merely pushed the other guy (I'm not using victim or assailant for anyone involved in this situation purposefully) into a wall or to the floor, this would likely have just been seen as a bar fight where both sides were told to go home and that would have been the end of it. I also think it is a strong possibility that the whole "athletes are targets" situation could have arisen here with the other guy realizing after the fight who ND was, although the other guy have just been a drunk who wanted to start a fight with anyone.
My early suspicions that ND was not the aggressor or was a 50-50 participant stemming from his coming to CBH afterward and filing a police report seem to have been confirmed. So anyone had the more outlandish stories about ND going around beating people up and stealing their lunch money, I'm sorry to say you may have lost the office pool.
I think what CBH has done so far in suspending ND for these first two games is appropriate. However, a case like this can take a long time (basketball season wise) and I do not think it warrants an indefinite suspension. If ND is convicted, then by all means, kick him off the team (I don't think there is a need to revoke his scholarship when he is in his senior year). This case seems pretty weak from the sparce facts that we know, and I would hate to see a kid (yes, he is still a kid in college who make mistakes) lose out on his senior year of school and basketball because he defended a friend. True, maybe he shouldn't be hanging out with friends who get in fights, but for any of the holyer-than-thou people who were quick to bash ND, be honest with yourself and I'm sure you either have been in that situation before or know of people who have, before villifying ND. CBH has never given me a reason to doubt his character, so whatever he decides to do with the situation, I will support.
Anyways, off to Pauley. Hoping that JK, RN, and BL all make the most of the opportunity they have been given and make the possiblity of ND coming back a luxury and not a necessity, much like LaMychel James did for Oregon football with LeGarrette Blount.
Go Bruins!
This is a FanPost and does not necessarily reflect the views of BruinsNation's (BN) editors. It does reflect the views of this particular fan though, which is as important as the views of BN's editors.
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Thanks for this Poncho
However, I am going to respectfully disagree with you wrt to point on whether Dragovic should come back while charges are pending. I think he needs to get that issue resolved. If he is cleared of the charges, I will welcome him back to the team but right now I would prefer he gets it all straightened out first. Anyway, we are not going to agree on this so I will leave it at.
That said, I trust CBH’s judgment on this. Also, note Jon Gold also posted partial transcript of conference call with Dragovic’s attorney.
I go back and forth on this
the part of me that disagrees says that ND hasn’t been convicted of anything. While he certainly seems to have committed some kind of crime (perhaps misdemeanor assault), I don’t think it’s fair to assume guilt in this case. A very good friend of mine had completely bogus charges filed againts him and he lost his job. Later, the charges were dropped. I realize that players should be held to a higher standard because they represent an institution, but this doesn’t appear to be a situation that ND could have avoided. My bet is that he was trying to help out a friend (obviously just speculating)…who here hasn’t done that? And the fact that he told CBH and he didn’t suspend him at that point should count for something.
The part of me that agrees says that this is ND’s 2nd violence-related offense, so he is already treading on thin ice. It also could be a distraction to the team.
A Little More Context and a Comment
This afternoon, from my home in Texas, I did something none of the reporters had done. I called the LA DA’s office and asked them the charge against ND.
Here’s the info:
Cal Penal Code Sect: 245 (a) (1)
(a) (1) Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm or by
any means of force likely to produce great bodily injury shall be
punished by imprisonment in the state prison for two, three, or four
years, or in a county jail for not exceeding one year, or by a fine
not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.
After a good bit of reflection I decided not to post this information. I felt that without any facts, the statute and charge were meaningless and would lead to more speculation.
Now we have some facts and, Poncho, I agree with your position.
In fact, I had a very similar case that was charged as a felony and later dismissed.
Years ago, I defended a NHL player, in Northern Wisconsin, who was charged with a felony for throwing someone through a glass store window. Big deal. Big press. But, the full story didn’t come out in the press until after my investigator and I entered the case.
Here were the facts: My client stepped in to stop a fight. A friend of his had been attacked by a drunk. My client took the attacker and pulled him off his friend. In doing so, he inadvertently through him through the window.
After we developed the facts, found witnesses the police had not interviewed and painted the full picture, the case was dropped.
I’m not saying this will happen with ND, but these things happen all the time and, with the full development of the facts, many of these seemingly serious charges are dropped.
I strongly recommend that each of you read the transcript of the defense attorney’s interview. If you are critical of ND, I think you owe it to yourself, and to him, to see the other side of the story.
One particularly interesting note: for all of you who continue to repeat that ND’s arrest last year was for beating his girlfriend, you may want to read the attorney’s statement that there was an argument but "There was no physical touching … ".
Poncho and I have always been on the same path on this. We trust CBH to deal with this correctly without input from a fan base that neither knows ND or the facts.
sjh
PS. Slightly OT: One of my favorite stories from representing those charged with crimes:
When I first got the case, I went to interview my NHL client at his parents’ home. He was huge, no neck — a northwoods tree stump.
“OK, walk me through what happened.”
“Sure”
Whereupon he picked me up and threw me into the living room wall. Thank goodness there was not glass there.
“WTF? That hurt.”
“Sorry. You said you wanted me to show you what happened.”
sjh
245 (a) (1)
Is a wobbler. Are they seeking a felony?
Troy will fall...again, again, and AGAIN!
by Bruins102NCAA on Nov 23, 2009 7:30 PM PST up reply actions
Right now, yes.
But these things often get dismissed, deferred, or used as a hammer to try to force a plea to a misdemeanor.
This entire story has yet to be told and the ending is clearly not pre-ordained.
sjh
My money is...
…ND end up pleading no contest to a misdemeanor. If that turns out to be true, then I think CBH would be justified in going beyond a suspension.
As it stands now, I agree with keeping ND off the court and suspended from basketball activities while charges are pending.
by Bellerophon on Nov 23, 2009 11:13 PM PST up reply actions
To me, what I find telling is...
…this nugget of information:
Afterward, Dragovic allegedly rushed the victim and pushed him into the case, prosecutors said.
Like I said earlier (in the last thread), one could definitely imagine a scenario with ND (or in this case, ND’s friend/roommate/etc.) was initially the victim of another person’s aggression. However, it seems, after the initial incident, ND went after the initial aggressor.
While we may not disagree with it in our gut (because, guys, we know how it feels to be pissed at someone who has just punked/fought/etc. a friend), the law says that the extracurricular activity is a no-no. Once the immediate threat has been extinguished (which, if I read the word afterwards in the article correctly), ND was no longer entitled to self-defense or defense of others. But in that factual scenario, I could see how ND would feel he and his friend were wronged and report it to the police.
There’s a lot of hating on the speculators, but you have to admit, my speculation wasn’t too far off. ;)
by Bellerophon on Nov 23, 2009 11:18 PM PST up reply actions
"Afterward" -- Therein lies the difference between the Defense and Prosecution Stories
In the defense statement, “afterward” refers to after the concert and the verbal dispute when the guy followed ND and his friend outside and threatened them with a knife.
If those are the facts, I’m willing to bet that no jury will convict ND for rushing the guy and knocking him down BEFORE he could pull the knife.
And, if those are the facts, I’m willing to bet the case will not be tried as a felony and most likely not tried at all.
sjh
To be more clear
You cannot use force after the threat is gone.
So does “afterward” mean that the incident was “over” and ND acted improperly?
Or, does “afterward” mean that the threat persisted and the event took place after the concert — but while the threat still existed? If so, ND may have acted in proper self defense.
sjh
No disagreement he re
The way I read afterward was that, there was some kind of incident between this unknown guy and ND’s friend. After the incident, that’s when ND acted, in which case it would no longer be self-defense, no matter what garbage the other guy may have been saying.
No dispute that if there was a legitimate, reasonable threat to ND, he’s entitled to self defense. But, it’d be nice to see more facts.
Right now though, because there are criminal charges pending, I’m glad CBH is holding him out of practice/games/etc. Got to let it play out, but if these charges are true, then it’s completely game over for ND.
Thank You Pancho and 66
My sentiments exactly and a well considered legal analysis to go with it. When I read this morning that the charges were felonious because he used “an instrument (viz the showcase)” likely to produce bodily harm, I thought to myself that sure Drago is big and strong, but I doubt he picked up this showcase and used it as a weapon or an ‘instrument.’ Now its clear that he threw the dude through the glass case. Seems to me the glass case was in the wrong place at the wrong time. I doubt that Drago had the presence of mind to deliberately aim the guy towards the case. I too hope that CBH allows him back on the court pending the outcome. I’m going to venture that this case never reaches trial. And the detail of his altercation (or really lack thereof) with the ex just convinces me more.
Having the charge specified doesn't change anything as far as I am concerned.
The issue for me is whether he did the act that is defined as a crime. If he did it, whether he’s convicted or not, then he should be fof the team.
Now, having said that, for you crim law types, is there something akin to an affirmative defense, meaning that he did the act he is alleged to have done, but then there’s this other thing, and the other thing means that he’s not guilty of the crime? E.g., a guy is accused of murder, and he admits that he took the life of another person on purpose, but then he shows his credentials and he’s a state-appointed executioner and he shows a properly executed death warrant for the guy he killed. Can something like that happen? That might make my entire scenario break down.
Fortunately, we do not have this sort of thing being decided by a real character guy like Cheatie Petie or Timmeh. I am very content to leave everything to Coach Howland to decide.
Self Defense or the Defense of Others
Using Google, I couldn’t find the Cal Penal Code that defines “self defense”.
If one of my Brothers and Sisters in the CA bar would post it, I’d really appreciate it.
sjh
Self Defense in CA law is mostly in case law
The most I could find in the code (other than justifiable homicide) is CA Penal Code 692, which just says “Lawful resistance to the commission of a public offense may be made: 1. By the party about to be injured; 2. By other parties.” Not much there.
Case law:
People v. Minifie, 13 Cal. 4th 1055
“To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. " ( People v. Goins (1991) 228 Cal. App. 3d 511, 516 [279 Cal. Rptr. 42], italics in original.) The threat of bodily injury must be imminent ( In re Christian S. (1994) [*1065] 7 Cal. 4th 768, 783 [30 Cal. Rptr. 2d 33, 872 P.2d 574]), and “. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]” ( People v. Pinholster (1992) 1 Cal. 4th 865, 966 [4 Cal. Rptr. 2d 765, 824 P.2d 571]
by Magnusblitz on Nov 23, 2009 10:29 PM PST up reply actions
I got you on this
The place to go for the plain English definition of crimes in California is the Judicial Council’s jury instructions, known as CALCRIM.
First the relevant instruction for the crime, a violation of Penal Code Section 245(a)(1), found in CALCRIM 875:
The defendant is charged [in Count ____ ] with assault with force likely to produce great bodily injury [in violation of Penal Code section 245].
To prove that the defendant is guilty of this crime, the People must prove that:
1A. The defendant did an act that by its nature would directly
and probably result in the application of force to a person,
and
1B. The force used was likely to produce great bodily injury;]
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act
by its nature would directly and probably result in the application of force to someone;
[AND]
4. When the defendant acted, (he/she) had the present ability to apply force likely to produce great bodily injury to a person
[AND
5. The defendant did not act (in self-defense/ [or] in defense of someone else).]
Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
[The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.]
[The touching can be done indirectly by causing an object [or someone else] to touch the other person.]
[The People are not required to prove that the defendant actually touched someone.]
The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault[, and if so, what kind of assault it was.
[Voluntary intoxication is not a defense to assault.]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
Second, here’s the relevant instruction for self defense, found in CALCRIM 3470:
The defendant is not guilty of (that/those crime[s]) if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if:
1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] ) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];
2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
AND
3. The defendant used no more force than was reasonably necessary to defend against that danger.
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to (himself/herself/ [or] someone else). Defendant’s belief must have been reasonable and (he/she) must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (self-defense/ [or] defense of another).
When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.
If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.
[The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.]
[If you find that threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]
[If you find that the defendant knew that had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]
[Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.]
[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with , you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).]
[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if
reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ ) has passed. This
is so even if safety could have been achieved by retreating.]
The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another). If the People have not met this burden, you must find the defendant not guilty.
Case law is nice, but I prefer the actual words the jurors will use to decide whether ND is or is not guilty of this crime (assuming it goes to jury trial).
by Bellerophon on Nov 23, 2009 11:12 PM PST up reply actions
Burden of Proof
The State has the burden of negating self defense beyond a reasonable doubt — ND does not have to prove it as an affirmative defense. That is he way it is in most places. What that means is that ND need no put on any evidence at all and he will win if the State cannot prove that he was not entitled to defend himself or his friend. If the other guy acted first, this will be a hard burden for the State to carry.
The belief of imminent harm is subjective — seen from ND’s perspective, not objective or what is seen as reasonable by people looking in from afar. So, what really matters is whether ND thought his friend needed help — not whether the friend actually needed help.
Both of these standards favor the defense.
As to whether the defendant used “excessive force” or “unreasonable force” the standard is often objective.
But, in real life, these are just law school words.
All jury trials are morality plays. Good guys win and bad guys lose.
So, if a jury believes that the other guy was the bad guy (I won’t call him the victim), even if a defendant used excessive force, the jury will exonerate him on the “jerk had it coming” theory of justice.
You can see the defense attorney starting to set this up — with the mention of the threat of the knife.
The difficulty with proving either that the defendant had no right to defend himself or the “other” and/or the difficulty of proving excessive force when the other guy is a jerk is often not known at the initial arrest or charging stages. That’s why, after a full investigation, many of these cases either get dismissed, deferred, or dropped to misdemeanors.
Thanks Beller — as I said before, we are at the beginning of the path. There’s a long way to go before we can say, with certainty, what happened and who is culpable.
My guess, either dropped or deferred.
sjh
My 2 cents
ND is a representative of the university. 24/7.
In the Navy, we’re told we’re ambassadors for the US (aka – Fuck up, and you’re not just making yourself look bad. You’re making the US Navy & the US look bad)
ND has twice been in unfavorable limelight. I’m not saying people shouldn’t defend themselves, but there’s also time to walk away, even from threatening jerks.
ND should not play until he has been cleared. And baby jesus help him if he has a 3rd strike… just IMO
Monday Morning Quarterbacking
Sorry, but I disagree.
It’s easy to sit at home and judge ND and talk about walking away when we were not there and don’t know the level of the threat.
ND went to a concert at a respected venue. If you believe his story, a drunk came out and threatened him and his friend saying he had a knife in his pocket.
And, you think that he should have just walked away? Maybe to take a knife in the back?
Not your call, Paul.
As the law above states — it’s not what you think he should have done but whether he reasonably believed he had to act to protect himself or his friend.
Why does the law define the defense that way?
Because ND was there and we weren’t. The law recognizes how inappropriate it is to Monday morning QB and we should, too.
sjh
Yes
And having been in a similar situation, I can’t help but agree wholeheartedly if that is actually what happened. Sorry, but no ones going to put a knife in my back if I can help it.
so you’re saying he should play immediately? or do you just disagree with my quarterbacking of the situation? either one is cool.
I like how there’s a lot of law home-QBing without being “there”. We’ll see how it shakes out. But for now it’s undeniable that , unintentionally, ND has brought unwelcome & negative attention to UCLA athletics. To let someone play with something like this still pending would make us just like what some of us on this board say $C is.
I'm saying what I've said all along --
I trust CBH, who knows more about the case than we do, and who is much closer to ND, to decide what is right , both for UCLA and ND— without the bellowing input from the fan base.
If CBH thinks it’s best for ND and UCLA to keep ND out of practice and off the hardwoods, so be it.
And, if he thinks it appropriate for ND to practice and play — I trust him to make that decision.
sjh
The severity of the injury probably influenced the charge as well
Apparently, the alleged victim’s achilles tendon was cut by the broken glass of the case. That may have influenced the DA’s office to file it as a felony rather than misdemeanor as it is not uncommon for the severity of the injury to come into play when making that decision.
I don't really care about the legal issue here...
As I’ve said elsewhere, I’ll defer 100% to Coach Howland on how to handle this since I am sure he has sat down with ND to try to counsel him as his coach, mentor and surrogate parent. I believe Coach will treat ND as any parent would.
Having said that…
ND was stupid to even be in this situation. He already has one scuffle with the law. And allegedly the other guy had a knife?
Walk away, dude…walk away.
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