NYPD assaults bicyclist, ongoing police abuse in NYC
NYPD assaults a bicyclist, who is then arrested and charged with assaulting a police officer. More at blip.tv.
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July 29, 2008
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July 25, 2008
Undercover informants
ABC news reported tonight on Rachel Hoffman, a Florida girl who was murdered after being forced to work as an informant for Tallahassee police following her arrests for POT.
After being caught twice with a "baggie" of marijuana, 23-year old Rachel Hoffman was reportedly told by police in Tallahassee, Florida that she would go to prison for four years unless she became an undercover informant. The young woman, a recent graduate of Florida State University, was murdered during a botched sting operation two months ago.
The Tallahassee police chief said:
Rachel was suspected of selling drugs and she was rightly treated as a criminal. "That's my job as a police chief to find these criminals in our community and take them off the street, to make the proper arrests," Jones told 20/20.
This is why, 9 times out of 10, I advise my clients not to work with the Horry County DEU (drug enforcement unit) or Horry County police. Any time they make a drug bust, DEU will go to the jail and interview the person before they have a chance to speak with a lawyer. They will tell them they are going to prison if they don't cooperate, but they can help themselves by helping the cops. If they are willing, they are debriefed and tell the narcs who they know and who they can help bust, and if they know the right people the narcs get them out of jail and send them out wearing a wire to make more busts.
Sometimes this is a good deal, but more often than not your case is going to turn out the same whether you help them or not. Sometimes you come out worse, because now you are under their thumb and if you don't stop using or selling they will bust you again. And again. This is why no-one should agree to work with the narcs or even speak to them until they have consulted with an attorney about their situation.
And then, sometimes you end up dead. I once represented a person who was accused of chasing down an informant after a drug deal gone bad, and then emptying his gun into her head. When my clients ask if it is a good idea to work with the narcs, I tell them this story before they make their decision. The narcs insist that they are just down the street and will protect them, but they know that it is not possible to truly protect their informants.
I am always amazed by Horry County police officers who insist that they will not allow my 18 year old clients with no prior record, charged with simple possession of a joint, into PTI or give them a conditional discharge unless my client "gives them someone else." My answer is always no - and every one of those cases results in a dismissal, conditional discharge, or pre-trial diversion anyway, because that is the right outcome.
Besides the danger of violence, there is the danger of continued drug use period. I have clients that I watch struggle with staying clean, and I know that if they were to work for the narcs they cannot stay clean - if they are hanging around drug dealers and drug users, they will use drugs because they cannot help it. The narcs know this, but will use them up and throw them away so that they can make more busts.
Light needs to be shed on the tools that law enforcement uses in the war on (people) drugs. When they think informant, most people have a picture from the movies of a hardened drug dealer, toting a pistol and wearing the scars of his violent life, that works with law enforcement for pay or to get a deal on his charges. When they know the reality, that often it is the college student or the young person no different than their own children that is being placed in harm's way, maybe people will see this aspect of the war on drugs differently.
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July 25, 2008
Resisting an unlawful arrest?
This video of Long Beach police forcefully arresting a woman, found by A Public Defender, was timely in light of my discussion of Brannon and unlawful arrests:
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July 25, 2008
State v. Brannon - resisting arrest first requires an arrest
"No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).
In State v. Brannon, the S.C. Court of Appeals held that for a person to be convicted of resisting arrest, there must first be an arrest. Seems like common sense, but there are many scenarios where people are charged with resisting arrest despite no valid arrest having occurred. In Brannon, police walked up to the defendant who they suspected was breaking into cars, said "stop, police," and the defendant ran. Officers gave chase and caught him, but once he was physically caught he did resist.
It is not against the law in South Carolina to "resist" an investigatory detention - for an individual to be considered under arrest they must be "physically touched for the purpose of restraint," or have "submitted to a show of authority at the time of . . . flight."
The Court of Appeals relies on U.S. Supreme Court cases which hold that an arrest for Fourth Amendment purposes requires an application of force or submission to a show of authority. In California v. Hodari D., 499 U.S. 621 (1991), for example, Hodari ran when he saw the police and, just before he was tackled and handcuffed, tossed a rock of crack cocaine. The USSCT held that the evidence was not the product of an illegal seizure and therefore was admissible in court, because Hodari was not seized until the moment he was tackled by the police.
In County of Sacramento v. Lewis, 523 U.S. 833 (1998), a fleeing motorcycle crashed and a pursuing police car ran over one of the riders, killing him. The USSCT held that, because the contact of the police car with the motorcycle rider was accidental, there was no Fourth Amendment seizure (and therefore no police liability to the dead riders' estate). The pursuit itself was not a seizure.
More recently, in Brendlin v. California, 551 U.S. , 127 S. Ct. 2400 (2007), the USSCT held that 1) a passenger in a car has standing under the Fourth Amendment; and 2) that a person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.
To say that "stop, police" constitutes an arrest for purposes of the resisting arrest statute, which is how some lower courts have been treating this statute, but does not constitute an arrest for purposes of excluding drugs that were tossed or for purposes of police liability, is inconsistent and defies the plain language of the statute. S.C. Code Sec. 16-9-320(A) says:
It is unlawful for a person knowingly and wilfully to oppose or resist a law enforcement officer in serving, executing, or attempting to serve or execute a legal writ or process or to resist an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned not more than one year, or both.
And an "arrest" is defined by Black's Law Dictionary as:
1. A seizure or forcible restraint. 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.” Black’s Law Dictionary 104 (7th ed. 1999).
Applying this analysis to Brannon's facts, he was not placed under arrest until he was physically touched by the officer, at which point he did not resist. Running from the officer's commands to "stop" amounted only to avoidance of the officers, not resisting arrest.
Brannon was also convicted and sentenced for breaking into a motor vehicle, and, although the opinion is not clear on this, it appears there was independent proof of that charge. What often happens is law enforcement will approach an individual who then runs, the police chase and eventually tackle them, place them under arrest for "resisting arrest," and then find drugs during the search incident to arrest. The cop is then good and pissed off, and the person is charged with resisting arrest, possession of drugs, assaulting an officer (because the officer scraped his knee while tackling the person), and anything else that the officer can think of.
There are now two main things to look for in resisting arrest cases. First, although I don't recommend it to anyone, it is well established that you have the right to resist an unlawful arrest. If the initial arrest was unlawful, you can resist the arrest and, if the court agrees with you, anything that is found on your person after the arrest may be excluded from evidence as the product of an unlawful seizure.
Second, under Brannon, always consider the possibility that there was no arrest to begin with. If a person runs from the police, they have not submitted to the officer's show of authority and until such time as there is physical contact by the police officer, there has been no arrest. The police cannot bootstrap themselves into making a case by charging someone with resisting arrest and then searching incident to the arrest for resisting arrest. There must be a valid reason to arrest the person, and then there must be an actual arrest.
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July 25, 2008
MADD presents awards for most DUI arrests
In Lexington, S.C. today MADD presented awards to SCHP Troop One and to individual officers for making the most DUI arrests.
Last year, the troop, which covers Clarendon, Sumter, Lee, Kershaw, Richland and Lexington counties, made 2,180 DUI arrests, up 320 from the previous year.Troopers made 665 DUI arrests in Lexington County during 2007, putting it fourth in the state for such arrests.
Should troopers be competing to make the most arrests? Quantity > quality. Another notch in the belt.
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July 25, 2008
Bicycling while intoxicated
DUIBlog found this story on a Georgia man charged with drunk biking. A man fell off his bicycle, was given field sobriety tests, a breath test, was arrested and charged with DUI. Apparently, bicycle riders in Georgia are subject to the same laws as drivers are - does he now lose his driver's license as a result of drunk biking?
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July 25, 2008
Why prosecutors should not rely on jailhouse snitches
In March 2008, Richard Gagnon was found guilty in Horry County of the murder of his girlfriend's mother and father, and he was sentenced to life in prison. The trial was televised live on Court TV, and I was surprised to hear most people who were following the story say that they thought he was innocent. Not just not guilty, but innocent. People on the street, people who left comments on the media blogs, even courthouse personnel felt that there was insufficient evidence that he had committed the crime, and were convinced that he would be found not guilty.
The girlfriend had been arrested and charged with the murder, then released and the charges dropped before Gagnon was charged. The evidence against him was circumstantial at best, there was DNA evidence placing someone else at the crime scene, and the state's case was based primarily on the testimony of a jailhouse snitch, Robert Mullins, who claimed that Gagnon had confessed to him while they were in jail. The jury convicted Gagnon, undoubtedly based on this witness' testimony.
Anytime the state needs to shore up their case, they can go down to the jail and round up some people that are willing to testify. In any high profile case, people with a) charges pending against them and b) information about the case, come out of the woodwork. Now, the Sun News reports that a new witness has come forward with information, writing to Gagnon's defense attorneys that Mullins was lying at Gagnon's trial.
Sometimes, the requirement of proof beyond a reasonable doubt is not good enough to ensure that innocent persons are not convicted. When a person is accused of murder, armed robbery, or any serious offense, it is difficult for jurors to hold the state to their burden of proof, and the defendant truly has to prove his or her innocence. In most cases, the prosecutor has quite a bit of credibility with the jury, and they want to believe that what the prosecutor is saying is true. The prosecutor would not tell them this person is guilty if it were not true, and surely the prosecutor would not put a witness on the stand that would not tell the truth?
When there is scant evidence of guilt other than a jailhouse snitch, and there is DNA evidence placing another person at the scene of the crime, do we blame the prosecutor for going forward with a case knowing that the jury may convict an innocent person? In South Carolina the Solicitor is an elected official, the media is watching, and the public demands a conviction. I can understand why prosecutors go forward with these types of cases, and rely on defense attorneys, juries, and judges to ensure that justice is done. But justice in a criminal case begins with prosecutorial discretion.
Because of the problems that are inherent in the testimony of jailhouse snitches, prosecutors should not be permitted to use them at trial. Allowing prosecutors to obtain convictions based on testimony from jail informants is wrong. The testimony is unreliable and any conviction that is not corroborated by independently sufficient proof is suspect.
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July 23, 2008
Constitutional right to access evidence for DNA testing
Via Volokh.com: a federal district court in New York issued an opinion Monday in McKithen v. Brown, which held that there is a constitutional right, post conviction, to access evidence for DNA testing under certain circumstances:
The Petition Clause, however, secures a right of meaningful access to whatever avenues remain, and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of trial.
Prisoners have a right to petition the government by whatever means the legislature provides, in this case by petitioning the governor for clemency, and that right is protected by the Petition Clause. The Court does not answer the question of whether actual innocence is a freestanding ground for habeas relief.
If the right to petition the government is to have any meaning in this context, Due Process requires that there also be a right to post-conviction access to evidence for DNA testing, and the Court finds that:
[E]vidence of innocence that is of unimpeachable reliability is practically necessary if it “‘undermines confidence in the outcome of the trial,’” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).
South Carolina has been trying to get a law passed that would mandate the preservation of evidence and grant prisoners access to evidence for DNA testing. Under the N.Y. Court's analysis, even though the statutes authorizing access are not in place, prisoners should have a constitutional right to such access, at least where there also exists a right to petition the government, whether by clemency petition, habeas, or PCR.
Of course, if the evidence has been destroyed by the government, which currently is quite possible in South Carolina, a constitutional right to access the evidence is meaningless.
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July 21, 2008
Reese Joye
Attorney Reese Joye of Charleston, S.C. has passed away. I did not know Reese personally, but after hearing many testimonials from the people who did I can appreciate what an impact he has had on our legal community.
Reese was a founder of the South Carolina Association of Criminal Defense Lawyers and of the National College for DUI Defense, and was the first president of SCACDL. He published a multi-volume set of books on DUI defense, and was nationally recognized as an expert in the field.
As news of his passing reached Charleston, friends and colleagues recalled Joye as a tenacious attorney who worked long hours, did his homework and was always the most prepared lawyer in the courtroom. His firm holds the record for the largest personal injury verdict in state history.
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July 21, 2008
Are lawyer/ public officials subject to ethics rules?
An Arizona prosecutor/ county attorney is under investigation by the State Bar for numerous complaints, including allegations of:
1) inflammatory public statements to the press about defendants;
2) allowing non-lawyers to act as lawyers;
3) seeking to recuse a judge from all county cases; and
3) ex parte communication with another judge.
The county attorney has filed a petition with the Az supreme court, asking that the disciplinary committee stop investigating him, claiming "executive immunity" among other things.
In the brief the Bar states that “A lawyer who happens to be an elected public officer…cannot simply opt out of the lawyer-regulatory system claiming the privilege of his elected office.”
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July 21, 2008
DNA evidence and why we trust the government
The LA Times released a story two days ago which raises new questions about the reliability of DNA evidence in court. Well, what strikes me about this story is not the reliability of DNA evidence so much as the ethics of the FBI.
Government experts routinely explain to juries how certain a DNA match is, although I hear different numbers each time. Pick a random number that is too big for the brain to comprehend; one in that number is the odds of another DNA match occurring. I in 113 billion. 1 in 100 billion. 1 in 108 trillion. 1 in 1 quadrillion. FBI experts have testified that certain DNA profiles are unique, to a reasonable degree of certainty.
The problem is, FBI analysts have never tested 100 billion, trillion, or quadrillion DNA samples and looked for matches. They are giving their best guess, and undoubtedly the need to obtain convictions transforms a "best guess" into a "reasonable degree of certainty."
In the 1990s, FBI scientists estimated the rarity of each genetic marker by extrapolating from sample populations of a few hundred people from various ethnic or racial groups. The estimates for each marker are multiplied across all 13 loci to come up with a rarity estimate for the entire profile.
However, the growing number of samples contained in state DNA databases is making real research into DNA matches possible. An Arizona crime lab analyst began finding dozens of DNA matches in the state database. Court ordered searches in two states found 1000 pairs that matched (9 of 13 points matching). A court ordered search in an Arizona case found 122 matches in 65,000 samples tested.
The odds that the new searches indicate are still substantial, and likely are still not only admissible but persuasive in court. The ever growing DNA databases offer new unique opportunities for research that may benefit not only the court systems but the sciences as well. And yet, rather than open up the DNA databases for testing, or even conduct their own testing, the FBI went on a campaign to prevent any such tests.
They threatened state labs who complied with court orders to conduct the tests. They schemed to figure out ways to trick judges into not granting defense counsels' requests for testing. They told judges that they would cut off state labs from the national databases if the courts ordered the tests, and consulted experts who would explain to judges that the tests were not scientific and not necessary. They argued that the tests would violate the privacy rights of convicted felons and that they would result in the systems being overloaded and shut down. They argued that, under federal law, the databases were exclusively for the use of law enforcement agencies and not defense lawyers.
Why not run the tests, get accurate probabilities based on real numbers, and tell the truth to juries? The probabilities are surely going to be impressive even if they are not as ridiculously large as the FBI has been claiming. I doubt that it will result in more acquittals. To me this story was not about the revelation of finding DNA matches so much as the FBI's attempt to hide the truth and preserve their inflated estimates. I hope that this national discussion sparked by the Times' story leads to more research and testing in the area of DNA analysis, free from the prosecutorial bias and scientific repression of the FBI.
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July 21, 2008
Judge signs search warrant for attorney's files
Judge Mark Rusch in Frisco Texas signed a search warrant authorizing police to search defense attorney Mark Gore's files, seeking items and letters written from his client to his client's wife. A hearing was scheduled in four days before a judge to determine whether the information was subject to privilege and if the police were entitled to it, and yet the prosecution sought Rusch's aid in obtaining the information before the hearing was held.
What is wrong with this?
1) Instead of waiting for a judicial determination, the police and prosecution seek a search warrant to go through the defense's file and take what they want.
2) A judge actually signed an ex parte search warrant, knowing that a hearing on the matter had been scheduled where both sides could be heard.
3) As noted by Simple Justice, In order to find the information they were looking for, agents of the prosecution went through the defendant's entire file, and most likely compromised other privileged case files as well.
The prosecutor is seeking to disqualify the defense attorney from the case so he can call him as a witness. The Texas and the National Associations of Criminal Defense Lawyers have gotten involved in the case and are assisting the defense attorney. The defense attorney has been forced to retain his own attorney in the matter, is moving to recuse the judge that signed the search warrant, and is moving for the return of and to exclude from trial all materials that were seized from his office.
This appears to be an example of dirty prosecution pool at its worst. The prosecution and Judge Rusch have violated Gore's client's Sixth Amendment right to counsel, violated Gore's Fourth Amendment right to freedom from unreasonable search and seizure, and subverted justice by placing the items in the prosecutor's hands before a judicial determination of the prosecution's right to have them. If you are the law and you want something, take it. Want to peek in defense counsel's files? Get a search warrant.
I sincerely hope that more information comes to light that could somehow justify the DA's and judge's actions in this case.
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July 20, 2008
The politics of Kennedy v. Louisiana
In the Spartanburg Herald Journal today was an op-ed piece by myself and by Senator Kevin L. Bryant, on the U.S. Supreme Court's decision in Kennedy v. Louisiana. I point out, in a reproduction of this post from June, that the enactment of South Carolina's child rape death penalty statute was a stunning example of bad politics controlling legislation. Despite the fact that there is a national consensus against the death penalty in non-homicide cases (there has not been an execution in a non-homicide case since 1963), it serves none of the traditional purposes of the criminal justice system, and there is an enhanced danger of wrongful convictions in child rape cases, railing against child-rapists is a tested and proven way to get attention and votes. It's right up there with tougher penalties for DUI and drug crimes.
Senator Bryant, who "led the fight for the inclusion of the death penalty sentencing in South Carolina's version of Jessica's Law," calls the majority of the Supreme Court "arrogant," and rails about how the liberal justices are "legislating from the bench," saying: "I did not seek office to take orders from unelected men and women who offer their prescriptions for society from behind a black robe, and I think the vast majority of my constituents elected me to represent them, not do the bidding of the judiciary."
Tough words, and yet another beautiful sound-byte for the public. We don't need liberal judges to tell us what is constitutional or not, our esteemed president could have told us that. The Senator leaves us with a reminder that elections are in November: "Our only protection against an encroaching judiciary lies in our ability to select the president who appoints its members. Please remember that in November."
I'm not disputing that Bryant's view is shared by many, and it is what the masses want to hear. It is good politics, but good politics makes for bad law. When this bill was being debated, South Carolina's defense bar and prosecutors joined together in opposing it as unconstitutional, and yet our legislature disregarded their advice and passed the law anyway.
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July 16, 2008
Self defense and involuntary manslaughter are not mutually exclusive
In State v. Mekler and State v. Light, both opinions released this week, the South Carolina Supreme Court held that involuntary manslaughter and self defense are not mutually exclusive, and that in a murder case both should be submitted to the jury if there is any evidence to support them.
Voluntary and involuntary manslaughter are confusing concepts which are often misunderstood, even by lawyers and judges. Manslaughter is the unlawful killing of a person, without malice. The definitions vary somewhat from state to state, but In South Carolina, voluntary manslaughter requires 1) legal provocation, which is some act by the victim such as an unprovoked attack, and 2) "sudden heat of passion" in response to the provocation.
Involuntary manslaughter is the unintentional killing of a person, either 1) while engaged in an unlawful activity, but not one which would ordinarily cause death or great bodily harm, or 2) while engaged in a lawful activity but with a reckless disregard for the safety of others.
To have the judge charge the jury on self defense in South Carolina, four elements have to be supported by the evidence:
(1) the defendant must be without fault in bringing on the difficulty;
(2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury;
(3) if his defense is based upon his belief of imminent danger, the defendant must show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life; and
(4) the defendant had no other probable means of avoiding the danger.
If there is any evidence at all to support the lesser included offenses of voluntary or involuntary manslaughter, or the complete defense of self defense, the trial judge must instruct the jury on them, and evidence of a struggle between a defendant and a victim over a weapon is sufficient for an involuntary manslaughter instruction.
In State v. Light, the defendant testified that he was confronted by his girlfriend, who was holding a .22 rifle in one hand and a long strand of brown hair in the other, screaming and accusing Light of having another woman in the house. Light testified that the victim had been acting jealous and following him for weeks before the incident, and there was conflicting testimony from Light and from the State's experts that would have supported a finding by the jury that 1) he took the gun from her and shot her as she crouched or knelt down; or 2) that he took the gun from her and unintentionally shot her after he jerked the gun away and stumbled back; or possibly that 3) the gun went off as she held it, but after he tried to knock it out of her hands.
The judge charged the jury on murder, voluntary manslaughter, and accident, but refused to give jury charges on involuntary manslaughter and self defense. The Supreme Court reversed and ordered a new trial, because there was some evidence at trial to support all of the theories - when there is any evidence of each theory, it is up to the jury to weigh the evidence and decide, not the judge.
Mekler was a more sympathetic defendant by far. She testified that she was sitting on her porch with the victim's wife when the victim came into the yard yelling at his wife and holding a knife, which he said was for Mekler's dog that was barking. Mekler picked up her shotgun, pointed it at the victim and pulled back the hammer while holding it at her waist, and testified that the gun went off unintentionally as she pulled back the hammer. She consistently testified that she did not intend to pull the trigger, and that testimony appeared to be uncontradicted, yet the judge refused to charge involuntary manslaughter and she was convicted of murder.
Although the trial judge did give a self defense instruction, the conviction was overturned because no involuntary manslaughter instruction was given - there was evidence to support self defense or involuntary manslaughter and all theories that the evidence supported should have been submitted to the jury. It sounds as if there was also evidence to support a charge of defense of others, since the testimony indicated that the victim was coming after his wife and not the defendant, but there is no mention of whether this was requested by the defense.
The jury instruction for involuntary manslaughter makes a huge difference - if convicted of murder, the minimum sentence that can be imposed is 30 years (85%, no parole), but involuntary manslaughter carries a sentence of 0 - 5 years.
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July 16, 2008
What motivates prosecutors?
Anonymous small town DA Western Justice asks the question, why do prosecutors do what they do?, and his answer is that prosecutors are motivated to help the victims of crime. I think that this is true of many prosecutors, and it is the right answer.
There are many reasons why prosecutors and defense attorneys do what they do, but the best advocates on either side are those that are motivated by a genuine desire to help people. Prosecutors help to vindicate crime victims, and they work to make the community a safer place for everyone.
Defendants and their families are also in crisis when they enter the criminal justice system and, whether innocent or not, need help possibly more than at any other time in their life. I believe that the best defense lawyers are primarily motivated by the need to speak for people that would otherwise have no voice. There are other motivations that go hand in hand with the desire to help people, and that should apply equally to both prosecutors and defense attorneys - the fight to maintain the constitutional protections that our justice system was founded on, including the fight to preserve the right to jury trial and proof beyond a reasonable doubt, which protects all of us from the possibility of wrongful conviction. Many great prosecutors and defense lawyers are probably adrenaline junkies as well, and love the competition and the excitement that can come with criminal trials.
Regrettably, this does not define all prosecutors or defense lawyers. Western Justice asks, "is it because a prosecutor’s heart lies with throwing people in prison and jail to sit there and rot?," and answers no - but I believe he is wrong about some prosecutors. With great power comes great responsibility, and there are some prosecutors that cannot handle the power that comes with their job. I have no doubt that some prosecutors take pleasure in sending a person to jail, and not surprisingly these are the same ones that are less than scrupulous about following the rules, such as full Brady disclosure. Some prosecutors' motivations are political, and some would rather send an innocent person to jail than lose a case that has been followed by the media.
Many attorneys are motivated by money, and rake in as much as they can while spending as little time as possible on each of their cases. But - my experience has been that the attorneys who do the most, and who care the most, are those that focus on criminal law. The bottom line is, there is more money to be made elsewhere, and, if you are exclusively a criminal defense attorney or if you are a prosecutor, you are probably not doing it just for the money.
I applaud Western Justice's motivation for doing what he does, and in a perfect world all prosecutors and defense lawyers would be drawn to their profession by the same basic motivation - to help people, whether they are victims of crime or victims of the government.
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July 16, 2008
Room 8 subpoena related to death threat investigation
The Bronx DA, who yesterday did not realize he had issued a subpoena and did not know what was in it, now reveals that it was regarding a death threat investigation. Someone was sending threatening letters to the Bronx board of elections deputy chief Dawn Sandow, in at least one letter they mentioned blogging, and so the Bronx DA sent a subpoena to Room 8 to compel the identities of anonymous bloggers who were critical of the politicians, even though no death threats had been posted on the blog.
They may or may not have been justified in seeking the information - if not then the remedy is to move to quash the subpoena which I believe is what was done with the assistance of pro bono attorneys. The abuse of power that happened was not the issuance of the subpoena, but the language that essentially threatened prosecution if the recipients mentioned the subpoena to anyone. From what I understand, the DA does not have authority to make that threat, unless there is a judicial gag order in place.
Imagine if you would what would happen if I or any other defense attorney issued a subpoena and included language that ordered the recipient not to disclose the existence of the subpoena, if a defense attorney were to issue subpoenas during a pre-indictment investigation, or if a defense attorney were to mail non-domesticated subpoenas anywhere in the country and threaten to send local police across state lines to arrest the witness?
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July 15, 2008
Kentucky judges order public defenders to take cases
District court judges in Kentucky are speaking out publicly against the state's public defenders' decision to stop taking certain types of cases, following sweeping budget cuts by the Kentucky legislature. Judges are ordering the public defenders to continue accepting cases, despite the lack of funding.
Fayette District Judge Joe Bouvier ordered public defenders to continue representing the mentally ill in civil commitment proceedings. Kenton County District Judge Ann Ruttle declares that the public defenders should represent co-defendants at preliminary hearings, and forced a defendant to proceed without representation.
Ruttle said preliminary hearings occur too early in the process for lawyers to even know if there is a conflict of interest.”They act like there is (a conflict of interest), but they have no clue at that stage,“ Ruttle said of public defenders.
"Unconscionable'
Maybe Kentucky judges should be focusing their efforts on the legislature and not the public defenders. Or consider the ethics rules that govern all lawyers, including public defenders, which require that every client receive competent representation, which is impossible to do once your caseload reaches a certain point. It seems to me that in the face of a state refusing to fully fund the constitutional mandate of Gideon v. Wainwright, judges should be ordering counties to pay for representation or they should be dismissing cases.
The Kentucky Department of Public Advocacy has filed a lawsuit to force the General Assembly or the State Finance Cabinet to adequately fund indigent defense, alleging that the current level of funding is unconstitutional.
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July 15, 2008
Abuse of the subpoena power by prosecutors
The New York Times reported today on a grand jury subpoena issued by the Bronx DA's office, seeking to compel information about anonymous bloggers on a political blog called Room 8.
The subpoena carried a warning in capital letters that disclosing its very existence “could impede the investigation being conducted and thereby interfere with law enforcement” — implying that if the bloggers blabbed, they could be prosecuted.
Imposing the equivalent of a judicial gag order and threatening prosecution if the subpoena is disclosed is not within the authority of the DA, and, without a judicial order, was a clear abuse of power. The DA's office said that "it was not uncommon for subpoenas to include nondisclosure language in order to protect an investigation," but then stated that the DA was not aware that a subpoena had been issued nor was he aware of the content of the subpoena.
Simple Justice suggests that it may be no coincidence that this tactic was used on bloggers, few of whom could afford to pay for lawyers to fight the DA's office on issues like this. Room 8 was lucky in that competent local counsel came to their assistance pro bono.
Abuse of subpoenas by prosecutors or law enforcement is not isolated to New York. In South Carolina, subpoena's are often issued by law enforcement, when there is no active court case, captioned, "State v. ongoing investigation," which is also an abuse of the subpoena power. If there is no court case, law enforcement has to obtain a search warrant signed by a judge and based upon probable cause before they can compel the production of records. A subpoena on the other hand does not require a finding of probable cause by a judge, and is obtained in a criminal case simply by asking the clerk of court to sign at the bottom.
We have a Fifteenth Circuit Assistant Solicitor who repeatedly mails subpoenas to out of state witnesses, commanding them to appear in court in Horry County, S.C. After explaining to him off the record why he cannot do that (the subpoena must be domesticated by a judge in the witness' home state), and why it is also inappropriate to threaten to send S.C. law enforcement to arrest the witness in another state where they do not have jurisdiction, he acknowledges that is inappropriate and he misunderstood the law. Yet, today, more than a month later, another witness in another trial calls and then faxes to my office a non-domesticated Horry County subpoena that was mailed to her in Maryland, commanding her to appear, by the same Asst. Sol. I'm sure, like the Bronx DA, he did not realize a subpoena was issued. Or what its contents were.
Prosecutors do not have to go outside of the law to win cases. If they do, the case should not have been won in the first place.
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July 15, 2008
Complaining witnesses as prosecutors part II
A new law has been passed in South Carolina that stops the practice of alleged victims signing as affiant on arrest warrants. The new S.C. Code Section 22-5-115 still allows complaining witnesses to provide affidavits to the magistrate, but the magistrate is authorized only to issue a courtesy summons and not a warrant for the subject's arrest:
(A) Notwithstanding any other provision of law, a summary court or municipal judge may issue a summons to appear for trial instead of an arrest warrant, based upon a sworn statement of an affiant who is not a law enforcement officer investigating the case, if the sworn statement establishes probable cause that the alleged crime was committed. The summons must express adequately the charges against the defendant. If the defendant fails to appear before the court, he may be tried in his absence or a bench warrant may be issued for his arrest. The summons must be served personally upon the defendant.
However, there are additional requirements that must be complied with for these types of summons to be issued:
(1) an affidavit that establishes probable cause;
(2) a description of the charges against the defendant;
(3) the date, time, and place of the trial;
(4) the name of the issuing officer;
(5) the defendant's and affiant's name, address, and telephone number;
(6) the date and location of the incident; and
(7) notice that the defendant may be tried in his absence or a bench warrant may be issued for his arrest.
(C) A summons issued pursuant to this section must be tracked in the same manner as an arrest warrant.
At least, this will put a stop to the practice of angry neighbors or people with an axe to grind putting people in jail without the involvement of law enforcement. I predict that there will be a decrease in these types of cases once people learn that it is not an easy way to punish your enemy by having them locked up. But the question still remains, who will prosecute these cases when there is no prosecutor or officer involved?
If the defendant is brought into court on a criminal summons issued by a magistrate at the request of a private citizen, the State is still the prosecuting party, not the complaining witness. It is still unauthorized practice of law, punishable by up to 5 years under South Carolina law, for the complaining witness to represent a party (the State) in court.
If South Carolina's Court Administration, which governs the operation of the state's magistrate and municipal courts, were to look at this issue and instruct the magistrates on the impropriety of allowing complaining witnesses to act as state's attorneys, this problem would be solved. These cases have to have a prosecutor assigned to them if there is no arresting officer.
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July 14, 2008
How to hide your weed
"How to hide your weed" was the title of an article printed in the Dallas Observer last year, reproduced here, about former East Texas cop Barry Cooper. Cooper spent eight years as a narcotics officer in Texas, and now is making his living promoting his "never get busted" dvd's that teach users tips and tricks to avoid drug arrests. Cooper's dvd's go beyond the Just Cause Law Collective's advice on handling police encounters, and delves into topics such as where to hide your stash, how to grow pot without getting caught, and how to spot undercover officers and informants.
Cooper's dvd's have been fairly controversial. As you can imagine, the law enforcement community is not pleased with him and, at the same time, he is not completely accepted by those in favor of legalization because, although he has a great message, there is not much doubt he is in it for the profit.
On his website, he answers the question, "am I teaching people how to break the law?:"
No. It is clear the law is already being broken. 18 million Americans smoke marijuana daily and 93 million Americans admit to using marijuana at least once in their life. Barry is teaching how to keep from going to jail for an unjustified law that is already being broken daily by millions of non-violent citizens.
The inevitable controversy that comes from his existence provides a platform to speak out against the failed war on drugs. Speaking out against the war on drugs, in turn, gives him more press to sell more of his dvd's, but despite this it is a powerful message that he is able to carry:
Barry now admits during his tour of duty in the war on drugs his conscience often bothered him while seeing everyday, hard working, non-violent citizens torn from their children and spouses and placed in jail during a raid or traffic stop.Barry explains, "I knew what I was doing was wrong but my need for fame, adrenaline and peer acceptance overrode my good conscience." Barry now realizes this is a war on people not a war on drugs. He explains "This war on people is a failed policy. We have more prisoners of this war in jail then ever before yet even the DEA admits we have more potent drugs and a larger supply of drugs available than ever before."
Cooper's dvd's have received positive and negative feedback from the blawgosphere - Windypundit likes them, Jon Katz has some issues with them and instead recommends Flex Your Rights' Busted video, which is free and may be more reliable from a legal standpoint.
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July 13, 2008
A JonBenet Ramsey hypothetical
12 years after the crime occurred and after Patsy Ramsey's death from ovarian cancer, DNA evidence has exonerated the parents, clearing them of any suspicion. In a rare act of acknowledging their screw up, the DA's office apologized to the Ramseys, and:
The DA told the family: "We intend in the future to treat you as the victims of this crime, with the sympathy due you because of the horrific loss you suffered."
This story brings national attention to the forensic uses of DNA again - John Ramsey is urging the passage of laws that authorize the collection of DNA from arrestees who have not been convicted. The story also highlights the need for preservation of evidence and access to DNA evidence by inmates who have claims of innocence. South Carolina has legislation to accomplish both of these pending, which has been vetoed by the governor because the legislature tied both ideas into one bill.
The idea of collecting DNA from persons who have not been convicted of any crime is opposed by the governor as an unacceptable invasion of privacy. DNA, unlike fingerprints, contains genetic information that is extremely private and personal, that can be used for many purposes other than crime-fighting. On the other hand, the idea of mandating preservation of evidence and access to DNA testing for inmates should be a pretty basic concept of justice. Who can argue that we should keep innocent persons in prison, and who can argue, in the face of exonerations around the country, that there are not innocent persons in prison who can be identified by DNA evidence?
One lesson from this recent twist in the JonBenet Ramsey story is the difficulty of proving a negative - the parents could not prove that they did not murder the child. This is a problem in any criminal prosecution, and it is the reason that the burden of proof is always on the government. Imagine, you are interrogated because there is circumstantial evidence that you were involved in a murder last night. Maybe someone says they saw you there, maybe there was a motive for you to kill the person. You know that you were at home, alone, watching television or sleeping, but how can you prove it? You have no witnesses, no good alibi, and no real defense.
What would have happened if they had arrested, charged, and tried John and/or Patsy Ramsey? What if one of them had cracked while being interrogated? What if the investigator held them for hours incommunicado, and repeatedly assured them if they signed the confession they would not be in trouble, but if they did not they would fry? What if after they were placed under arrest a jail-house snitch appeared who swears that John Ramsey confessed in confidence while he was awaiting bail? A crack-pot wanting attention appeared as an eye-witness and the prosecutor found them to be credible for some reason? An officer lied about statements made by the couple?
If they had been arrested and charged, and any evidence was produced even if shaky, there would have been a real possibility that the jury would ignore the standard of proof and would have found them guilty. No-one wants to believe that police officers lie, or that a prosecutor doesn't know what he's talking about when he asks a jury to convict a person. And the facts of the crime were just horrible enough that no-one wants to take a chance on releasing the person who did it.
If that had happened, they would now, 12 years later, be asking for access to the DNA evidence, still trying to prove their innocence. If they were convicted in South Carolina, that evidence may well have been destroyed by now, and if it had not been destroyed, they would have no right to test it.
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July 13, 2008
How to avoid police abuse
The last post's discussion of how to handle police encounters reminded me of Chris Rock's dated but classic, sage advice on "how not to get your ass kicked by the police:"
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July 13, 2008
Police encounters and the magic words
I've been reading the Just Cause Law Collective website (thanks to Windypundit), which is an excellent resource on how to handle police encounters. They also have a book for sale at a reasonable price.
One thing that they stress is the magic words you must use during a police encounter. When an officer is trying to engage you in conversation after you have been stopped (whether a traffic stop, walking down the street, at a friend's house, at the shopping mall), you need to say "am I free to go?" The Fourth Amendment does not come into play until you have been "detained," and during a "consensual encounter" with the police you do not have any Fourth Amendment protections. If you say "am I free to go?" and the officer says, "yes you are," then leave. If the officer says "no you are not," then you know that you are now being detained and the Constitution applies.
Example:
Cop: Can I ask you some questions?
You: Am I free to go?
Cop: I just want to talk to you.
You: Am I free to go?
Cop: You are free to go, just let me ask you some questions.
You: (Walking away) Bye.
On the other hand, if you are not free to leave - the officer says no, or if you have already been transported to the police station, my advice has always been to immediately assert your right to counsel and your right to remain silent and then say no more. Once you ask for an attorney, they cannot legally question you further until you have been given an attorney.
Law Collective suggests that you ask "why," when the officer says you are not free to go, for purposes of later establishing that there was no reasonable suspicion for the detention, provided there are witnesses to hear his response.
This is complicating things a bit. I propose that once you know you are not free to go, you keep it simple and say "I want my lawyer" and nothing more. Don't waffle, don't say "maybe I should talk to a lawyer," or "do you think I should call my lawyer?" It needs to be clear and unambiguous, "I want my lawyer."
Example:
You: Am I free to go?
Cop: You aren't going anywhere until I get some answers.
You: Then I want my lawyer.
Cop: Why would you want a lawyer unless you're guilty?
You: I want my lawyer.
Cop: If you just talk to us now, we can help you. If you lawyer up there's nothing I can do to help you then.
You: I want my lawyer.
It doesn't matter if you are guilty or innocent, odds are if an officer or detective is questioning you they think you are guilty. They are not trying to clear your name, they are trying to gather evidence against you and will try to trick you if they can. Either they are already planning on arresting you and want more evidence, or they don't have enough evidence to arrest you and they are looking for statements to justify their suspicions. The law collective also has a good collection of common lines and techniques that cops use during interrogations.
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July 13, 2008
Racial profiling on South Carolina Interstates
I went to the South Carolina Association of Criminal Defense Lawyers Blues, Bar-B-Q and Bar CLE in Greenwood, S.C. last Friday, and had a good time. One way I've found to stay excited about criminal defense and to stay current on what everyone else is doing in the field is to attend as many SCACDL and NACDL conferences as I can find time for. It is one way to re-charge and be reminded of why we do what we do.
The Greenwood CLE is always fun, coinciding with a blues and bar-b-q festival. This year I skipped the bands and the bar-b-q, but had a good time nonetheless, spent some time with old friends and learned a thing or two at the conference.
William H. Buckman traveled from New Jersey to give a presentation on methods of proving racial profiling in interstate cases, a topic that needs to be given more attention in the South where Jim Crow is alive and well on our interstates. I took a look at Mr. Buckman's website, where he has shared various materials on racial profiling challenges, and it looks like an excellent resource.
The Fourth Amendment is useless as a tool for specifically challenging racial profiling, but Buckman's suggestion is to make a threshold prima facie showing of racial disparity under the Fourteenth Amendment's Equal Protection Clause, sufficient to convince the Court to grant greater leeway in discovery. Certain documents can be obtained under the Freedom of Information Act (FOIA), which should allow for more complete discovery of agency records if a prima facie case of racial profiling/ an equal protection violation can be made.
Buckman has been successful in New Jersey in racial profiling litigation, exposing the methods used by the New Jersey State Police on the N.J. turnpike. In South Carolina, there are several "hotspots" where racial profiling occurs as well - I-85 through Spartanburg and Oconee County is one, and I-95 through Dillon County is another. It is time for more South Carolina defense lawyers to fight racial profiling on South Carolina's highways.
Attorneys don't often take drug trafficking cases to trial, usually because if the suppression hearing is lost there is no good defense at trial, and it is well known that S.C. judges are loathe to suppress any significant quantity of drugs. But if we do not challenge these cases consistently, nothing is going to change. Cops are going to continue what they are doing, and judges are going to continue slapping down the defense in the rare case that is challenged. We need to make some noise and bring more attention to what is being done to minorities on the roadside.
What's the problem, if drugs are being found and taken off the street? The problem is the thousands of innocent persons who are detained, harassed, and whose cars are tossed and sometimes dismantled, because they are Black or Hispanic. The problem is that lawyers and judges need to be enforcing the State and Federal Constitution, and not giving law enforcement license to break the law and lie in our courtrooms in order to obtain convictions or in order to fund their agencies.
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July 11, 2008
Complaining witnesses as prosecutors
Our magistrates are allowing private citizens to prosecute criminal cases. I have not seen much resistance to this by the bar, but I think we need to put a stop to it. The typical scenario is:
An individual feels wronged, is assaulted, employer is mad at employee, neighbors have a dispute, family members fight, etc. The most common cases are assault and battery, trespass, breach of trust, harassment, or unlawful use of telephone. Police are called, they investigate but do not find sufficient evidence to make a charge. The officer informs the complaining witness that they are not going to charge the subject, but informs them that they can apply to the magistrate for an arrest warrant. This seems to be a way to placate the complaining witness so that they are not completely dissatisfied with the police and courts, and so that they do not make a scene with the officer.
The officer's incident report will usually reflect that the case is administratively closed, sometimes saying specifically that the reason is for lack of evidence, and that the "victim" was advised to apply to the magistrate for a warrant. The complaining witness goes to the magistrate, who issues and signs a warrant for them, which is then served on the now defendant.
When the defendant arrives on his court date, the judge treats them as if they are litigants in a civil action, except the end result could be a criminal conviction, not a civil judgment. When the defendant retains an attorney and requests a court date, often the complaining witness does not pursue the case, fails to appear at the roster meeting and on the trial date, and the case is dismissed.
Sometimes if the complaining witness does show up on the trial date, an assistant solicitor in the magistrate court will pick up their case even though it is not of the type they are there to prosecute, and regardless of the merits of the case. But when a prosecutor does not pick up the case, some magistrates are allowing these complaining witnesses to prosecute the cases themselves, making motions, arguments, cross-examining witnesses, etc. I have watched a local attorney allow this to happen without objection, and try a case against a private citizen (and the defendant was convicted on one of two charges).
By allowing private citizens to swear out warrants, anyone is permitted to perform the function of a law enforcement officer, investigating a crime, then presenting their evidence to a magistrate who then signs an arrest warrant. But what happens then if there is no prosecutor to pick up their case? Can they then perform the function of a prosecutor representing the State in a criminal action? S.C. Code Sec. 40-5-310 makes the unauthorized practice of law a criminal offense punishable by up to 5 years in prison:
No person may practice or solicit the cause of another person in a court of this State unless he has been admitted and sworn as an attorney. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.
The right of pro-se representation is preserved by S.C. Code Sec. 40-5-80, which says:
This chapter may not be construed so as to prevent a citizen from prosecuting or defending his own cause, if he so desires.
However, it is the State who is the plaintiff in a criminal action, not the complaining witness. If an individual is wronged, they can seek redress in tort, and they have the right to represent themselves. This statute does not give to individuals the right to represent the State against a person charged with a "public offense." S.C. Code Sec. 17-1-10 states:
A criminal action is prosecuted by the State, as a party, against a person charged with a public offense, for the punishment thereof.
In re Lexington County Transfer Court summarizes the limits of unauthorized practice of law in the context of criminal prosecutions, holding that:
The representation of a party in a guilty plea in transfer court requires the presence and participation of legal counsel. Narrow exceptions to this general rule have been recognized in magistrates' courts. State v. Messervy. 258 S.C. 110, 187 S.E.2d 524 (S.C. 1972) (arresting officer may prosecute case in magistrates courts); State Ex Rel.McLeod v. Seaborn, 270 S.C. 3 ) 17, 244 S.E.2d 3 17 (S.C. 1978) (Messervy exception extended to include a supervisory officer of the arresting officer); State v. Sossamon, 29S S.C. 72, 378 S.E.2d 259 (S.C. 19S9) (Messervy exception limited to arresting officer and his supervisor, and request to extend Messervy exception denied).
Complaining witnesses are not parties in a criminal prosecution. The State and the defendant are the parties. Unless the complaining witness is an arresting officer or their supervisor, they cannot prosecute a criminal case.
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July 9, 2008
Necrophilia is against the law in Wisconsin, after all
The Wisconsin Supreme Court has decided that a person can be charged with sexual assault, even if their victim is dead. The three men were charged with attempted sexual assault, but the lower court dismissed the charges, saying that there was no state law prohibiting necrophilia.
The men went to the cemetery with shovels, a crowbar, a tarpaulin, and a box of condoms, which the men had purchased that evening on their way to the cemetery.
My first reaction was, how could there not be a law prohibiting necrophilia? The next reaction is feeling sick thinking how sad is it that we even need a law to tell people don't have sex with corpses.
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July 9, 2008
Standing up and fighting for your clients
I am very impressed with the attorney in this story from Albuquerque New Mexico, where civil rights attorney Dennis Montoya went to bat for his client, Curtis Slade. Slade had complaints about police abuse by the local authorities who were allegedly harassing him and had filed hundreds of complaints against Slade's gravel pit business.
The police contacted Montoya and lied, saying that they wanted to arrange a meeting with Slade and Montoya to discuss Slade's complaints, when their intent was to arrest Slade. When the police then claimed that they had a warrant for Slade's arrest, Montoya kicked them out of his office, and refused to turn over his client until they showed him the arrest warrant. He did not allow the officers to take his client until they had proven that the warrant was valid.
Regardless of the merits of Slade's claim, or the validity of the arrest warrant, the story illustrates how police will lie, even to an attorney, to get what they want. But more importantly, the story shows an attorney standing firm in the face of unethical conduct by police, and fighting for his client. I wonder how many attorneys would have just turned their client over when the cops came back claiming that they had a warrant.
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July 9, 2008
Police abuse videos
In Harrisburg, Pennsylvania, police beat a man in his cell after arresting him and charging him with DUI:
In New York, police officer body slams a woman. Do they teach this at the academy?
A compilation of South Carolina Highway Patrol videos that someone put together on youtube. There are a couple that I had not seen before:
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July 8, 2008
Williams - kidnapping and the sex offender registry
In Williams v. State, the South Carolina Court of Appeals held last month that registration as a sex offender is a collateral consequence of a kidnapping conviction, and therefore cannot be grounds for post conviction relief.
South Carolina's sex offender registry laws require that a conviction of kidnapping will automatically result in classification as a sex offender unless the judge makes a specific finding on the record that the crime did not involve a sex offense.
Williams pled guilty to kidnapping, two counts of armed robbery, possession of a stolen motor vehicle, failure to stop for a blue light, and possession of a gun by a person under the age of twenty-one. The petitioner filed a PCR petition asking for relief based on the attorney's failure to advise him that a plea to kidnapping would result in sex offender status and based on the attorney's failure to request a finding by the judge that Williams was not a sex offender.
It would make more sense for the legislature to have permitted a requirement of registration as a sex offender if there was a finding that the crime involved a sex offense, rather than making registration automatic. There are not a lot of facts in the appellate opinion, but it does not sound like this was a sex offense. Making registration automatic leaves the door open for too many mistakes - lawyers and even judges are not always going to know about the requirement, or are not going to think about it during the plea.
The Court found that Williams' attorney was not ineffective, because counsel cannot be ineffective, for purposes of PCR, for failing to advise a client as to any collateral consequence. Williams undoubtedly feels that his lawyer was ineffective, now that he is faced with the prospect of being pegged as a sex offender for the rest of his life, having his picture, name, and address on the internet, living with residency restrictions, and possibly having to wear a GPS monitor.
Although sex offender classification is a collateral consequence and he will not be granted a new trial, Williams should have other options for removal from the sex offender registry - if there was no sex offense involved in his case, possibly the prosecutor could have consented to re-open his case for the sole purpose of allowing the judge to make a finding of no registration on the record. If that is not possible, Williams could file suit requesting a declaratory judgment that there was no sex offense involved in his crime.
Williams' case reminds us of why it is so very important to get it right the first time. It is much easier than fixing mistakes later on down the road.
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July 7, 2008
Who benefits from the "war on drugs?"
For the record, I don't believe that victimless DUI will ever be decriminalized. The best that we can hope for is that future legislation and penalty schemes will at some point be the result of truthful research and not hysteria-driven politics. However, I do believe that as the public becomes aware of the facts of the failed "war on drugs," minor drug offenses will eventually be decriminalized.
Some time ago, I believed that the only people who advocated for legalization of drugs were people who used drugs. That was an easy way to write off arguments against prohibition. But, as more time goes by it has become harder and harder to justify our country's failed drug policies. And it is undeniable that the loudest voices for the end of prohibition are not drug-users, but respected researchers, attorneys, policy makers, and even law enforcement.
In an op-ed to the LA Times Saturday, attorney David Fleming and Judge James P. Gray (author of Why Our Drug Laws Have Failed and What We Can Do About It), make the observation that only cops and crooks have benefited from the $2.5 trillion spent fighting drug trafficking. They identify six groups of people that benefit from the war on drugs:
1) drug cartels who are raking in billions of tax free dollars;
2) street gangs who sell illegal drugs;
3) cops and the huge agencies that have been developed to fight (and profit from) the war on drugs;
4) politicians who get elected by talking tough about drugs and crime;
5) the prison industry; and
6) terrorist groups that are funded by drug trafficking.
Do I think we should abruptly end prohibition of drugs in all quantities? Of course not. I do think we should begin by decriminalizing simple possession of drugs, regulating their use, and funneling more funds into education, prevention, and treatment. Persons who commit real crimes while under the influence of drugs will be prosecuted and punished.
Locking up a person for using drugs in the absence of any other crime does not serve any of the traditional functions of the criminal justice system. It is not an effective deterrent to the use of drugs, and especially not for those who are addicted; there is no effective rehabilitation in most prisons; retribution is a theory of punishment that only makes sense when there is a true victim; and incapacitation is a theory that is only applicable when potential future victims need to be protected from the defendant.
Prohibition is a failed policy that has not achieved results. Although the United States has some of the most punitive drug laws in the world, and we lock up our citizens at a rate higher than any other nation, a recent study by the World Health Organization (WHO) found in a survey of 17 countries that the U.S. had the highest rates of marijuana and cocaine use.
Fleming and Judge Gray suggest that we should look to other industrialized nations to see what does work, and follow their examples. "Ending drug prohibition, taxing and regulating drugs and spending tax dollars to treat addiction and dependency are the approaches that many of the world's industrialized countries are taking. Those approaches are ones that work."
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July 6, 2008
DUI a victimless crime?
Driving under the influence is usually a victimless crime. If someone is killed or injured in an accident that involves an intoxicated driver, then there is a victim involved, but the charge will be Felony DUI in South Carolina, not DUI. Most of the time, DUI involves a traffic stop where no injuries are involved, field sobriety tests, breathalyzer or a blood test, and no victim. I say usually it is victimless, and not always, because there are times when a two car collision results in a misdemeanor DUI charge and yet there are not injuries sufficient to raise the charge to felony DUI, or there are times when a one-car accident while intoxicated results in property damage.
Shawn Matlock at the Matlock Blog makes the argument that DUI should not be a crime. He points out that DUI's clog the court's dockets more than any other type of case, and that DUI's are about two things: driver's licenses and money. He suggests that DUI's are more administrative issues than they are crimes, and perhaps we should begin treating them that way. The license restrictions and the financial penalties could be handled administratively, without every misdemeanor DUI going through the criminal courts.
People who come to me after being accused of driving under the influence are, without fail, most worried about losing their license. If they refuse the datamaster and their license is suspended, we request an administrative hearing to regain their license and they can get a temporary license until the hearing. If they are convicted of DUI, they will lose their license again. People need their driver's license to get to work, to take the kids to school, to buy their groceries, to survive.
The worst consequences of a misdemeanor DUI conviction, as Matlock points out, are the license suspension and the financial consequences. In South Carolina, it is 150$ to request an implied consent hearing and 100$ to obtain a temporary license from the DMV. Fines can run into the thousands for the DUI and related traffic tickets. ADSAP, which is mandatory if you lose the administrative hearing or if you are convicted of the DUI, can cost up to 2500$. 100$ reinstatement fee after the 6 month suspension for a DUI 1st offense, and then SR-22 insurance for 3 years which can cost thousands more. And this does not take into account the cost of hiring a DUI attorney to fight the charges.
I believe that there should be no such thing as a victimless crime - if there is no victim, there is no crime, only extraneous regulations and restrictions imposed on us by an out of control government. Among others, this includes drug possession and use, prostitution, gambling, and most misdemeanor DUI's.
I understand that when a person's family member is injured or killed by a drunk driver, that person is angry - they are a victim (of felony DUI). They want to make a difference, and prevent the same thing from happening to anyone else, and they need to do something to help the healing process. And these are the people that legislatures are responding to in passing get-tough-on-DUI laws, but criminal law is not the answer to every social ill. Instead of criminalizing more conduct, scarce resources can be put into prevention and treatment. We can find more creative ways to solve society's problems than locking people up in jails.
My opinion is that victimless DUI's should not be a crime. Felony DUI carries quite severe penalties and is vigorously prosecuted. When a misdemeanor DUI results in property damage or minor injuries it should be prosecuted as a crime, because there is a victim. When a person drives and is obviously under the influence to the extent that it impairs their ability to drive (which is not the case in many DUI arrests), a civil penalty or forfeiture of license is appropriate provided there is due process.
Of course, my opinion does not matter to the South Carolina legislature - DUI will not be decriminalized, the DUI laws will be enforced, and harsher and harsher laws will be passed. DUI and other traffic offenses will continue to be a cash cow for local governments. Any legislator who agrees that when there is no victim there is no crime will never speak the truth publicly, because it would be political suicide. Harsher DUI laws, more restrictions on convicted sex offenders, and tougher drug laws wins votes. Beating the DUI drum is a sure-fire way to work a constituency into a fever, and we will hear it again year after year.
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July 6, 2008
Boating under the influence
In Myrtle Beach, along the coast and waterway, DNR makes quite a few BUI cases - imagine, out on the water on the Fourth with family or friends, having a cold beer, a DNR boat pulls up alongside and you are cuffed, hauled off, and spend the holiday in jail.
See DUI a victimless crime? Substitute BUI and felony BUI for DUI.
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July 4, 2008
Independence Day - remember what we are celebrating
John Wesley Hall recommends that we all read Thomas Paine's Common Sense and then the Declaration of Independence.
A public defender gives us the president's speech from the movie Independence Day.
Joseph Galloway at McClatchy newspapers writes about how both presidential candidates are celebrating Independence Day by gutting the Fourth Amendment and voting to extend the FISA Act complete with amendments granting immunity to "the telecommunications corporations that assisted our government in the warrantless and illegal wiretapping it has grown to love."
Sentencing Law and Policy points out the irony of celebrating liberty in the country that leads the world in incarceration rates.
Mark Bennett notes the significance of the Declaration of Independence on current events; the indictment of King George in the Declaration could easily describe the U.S. presence in Iraq.
Simple Justice is less than sanguine about the coming year; and
Jon Katz reminds us that "July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle."
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July 4, 2008
Richland County Deputy charged with hit and run and DUI
The State news reports that Dennis Quinn of the Richland County Sheriff's Department was charged with hit and run, leaving the scene, driving under the influence, open container, and no insurance last night. He was fired from his job today as a result of the charges.
Although any law enforcement officer that is breaking the law, particularly as flagrant and brazen as these accusations indicate, makes me sick, he is innocent until proven guilty like every criminal defendant should be.
Firing before the charges are proven is harsh, but ok - I can't think of many things worse than a cop breaking the law. On the other hand, if a trooper commits attempted murder by purposefully running down a man with his patrol car, or ramming a fleeing motorcyclist head-on, they are not prosecuted and in the latter case are not fired, only ordered to a counseling session as punishment.
It is only one incident to compare and I don't know Richland County's track record, but possibly this highlights the difference between Richland County Sheriff's Department and the South Carolina Highway Patrol. Richland County gets rid of the bad egg before the publicity kills their image, and SCHP sweeps it under the rug, resulting in a culture of abuse and an ever increasing collection of incidents?
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July 4, 2008
U.S. Government holds patents to Medical Marijuana?
NORML reports that the U.S. Government (The United States of America, as represented by the Department of Health and Human Services) holds patents on various therapeutic cannabinoids found in pot.
And there you have it. The same federal government that steadfastly denies pot has any medicinal value also holds the medical patents on the plant’s various therapeutic cannabinoids. And they aren’t the only ones who do.
According to Wikipedia, the patent was awarded to the U.S. Government in 2003:
On October 7, 2003, a patent (#6,630,507) entitled: "Cannabinoids as Antioxidants and Neuroprotectants" was awarded to the United States Department of Health and Human Services, based on research done at the National Institute of Mental Health (NIMH), and the National Institute of Neurological Disorders and Stroke (NINDS). This patent claims that cannabinoids are "useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia."
Is this to be construed as an admission on the part of the federal government that pot does have medicinal value? A recognition of the inevitability of the legalization of medicinal marijuana? One commenter at the NORML Blog suggests that it is a new weapon in the war on drugs - if you can't prosecute them for possession or distribution, sue them for patent infringement!
Like Balko at the Agitator, I'm not sure what to make of this. It is certainly interesting, though.
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July 4, 2008
Ignorance Is No Excuse
Since the June 25th decision of Kennedy v. Louisiana, a military statute has been “discovered” that permits capital punishment for child rape in court martial. No lawyer mentioned this statute in brief or oral argument, and no justice mentioned the law in the opinion of the court. Many bloggers and writers have debated whether this statute changes the national consensus against the death penalty. Somehow, the more interesting question is how did no one know this law existed?
When the statute was passed in Congress the provision was on the 129th page of a 420 page omnibus authorization bill. The provision was neither mentioned nor debated by any legislator.
This bill has been approved by the president for over two years and no attorney ever seemed to know it was there.
Mistake in fact is a valid defense against a crime. You cannot steal what you believe to be yours. Mistake in law is not a valid legal defense. You can be convicted of DUI even if you do not know the legal BA level. You see, every Tom, Dick and Harry is on notice of all statutes and all case law no mater how complicated. This leads me to believe that the law is kind to those who know it.
The UCMJ statute makes me wonder who really knows the law. Nine of the most brilliant legal minds, all their law clerks, and professional SCOTUS attorneys missed this law. Perhaps the most valuable thing we can glean from this controversy is your legal writing professor was right. It’s embarrassing not to know legal precedent.
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July 3, 2008
Bloggers blogging about blawgs
In a conversation sure to interest none of our readers except fellow bloggers, Sentencing Law and Policy, Simple Justice, and CrimLaw discuss the relationships between lawprof blogs and the "practical blawgosphere."
Greenfield's chief complaint seems to be that the lawprof's in general ignore the practitioner blogs, not linking to them and not engaging in dialogue when issues arise that both groups blog about, such as the Heller decision last week. Doug Berman responds at Sentencing Law and Policy that he has not seen such a great divide between lawprofs and practioner's blogs - in fact the blawgosphere seems to be a "terrific cyber-meeting-space for the academy and the bar (as well as the bench and law students and non-lawyers)."
On the one hand, I agree with Prof. Berman - one thing I love about the criminal blawgosphere is the "meeting" of many different types of lawyers and non-lawyers with shared interests in criminal law, whether academic or practical. I spend a few hours every day reading lawblogs of both types. On the other hand, Prof. Berman took the bait in a sense, as Greenfield also pointed out in his post that the only time lawprofs show up in the practical blawgosphere is when they are criticized and feel the need to respond.
At the heart of the issue seems to be recognition - who links to who in their blog posts, recognizing the other's ideas and building on them. Lawprofs don't often comment on practitioner's blogs, although practitioners often comment on lawprof's blogs. More often than not, lawprofs are commenting directly on appellate opinions, whereas practitioners are commenting on everything under the sun. If we are commenting on appellate opinions, it makes sense to also link to lawprof's opinions on the opinions because they are, after all, the academics. The practical blawgosphere's focus is usually commenting on daily life in the trenches, how the appellate opinions affect our work, and commentary on a wide variety of topics that impact the practice of law.
Although we would like to hear from the lawprofs on the topics we discuss, and would like recognition from time to time since, after all, academia is a wasted effort without the reality of the daily practice of law that it helps to shape, it doesn't always make sense for lawprofs to get involved in conversations from the practical blawgosphere. And, I don't see a problem with lawprofs getting but not giving recognition for excelling in an area (blogging) that is primarily academic in nature anyway.
Prof. Berman asks "if readers generally see relative harmony or a big divide between bloggers in the academy and in the bar?" I think harmony when you step back and look at the blawgosphere as a whole, but a big divide if you look at it in terms of reciprocity and recognition.
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July 3, 2008
Sanford vetoes South Carolina DNA testing bill
The DNA testing bill was vetoed by the governor, which isn't entirely a bad thing, considering that the DNA access and evidence preservation bill had been combined with a bill allowing law enforcement to take DNA samples from arrestees who had not been convicted of a crime. Surprisingly, Sanford says that the reason he vetoed the bill is because he opposes the portion allowing DNA samples to be taken from arrestees:
We see this legislation as a reach past that very foundation upon which this country was founded," Sanford told legislators in his veto. He called the bill a "further encroachment on our civil liberties and privacy rights . . . Given the ever-expanding scope of the DNA database, we believe that it is finally time to draw a line in the sand and say that the DNA database will not be expanded to individuals who have not been convicted of a crime.
And Sanford supports DNA access for inmates and evidence preservation. I applaud his concern for our civil liberties and privacy rights and wholeheartedly agree with him, but it is hard to square his interest in criminal justice on this issue with his disregard for the Constitution on other issues, such as his his statement that indigent defense funding would "send the wrong message." I suppose some parts of the Constitution are more popular than others.
The legislature will not look at the DNA bill again until January 2009 - then they can either override the governor's veto or go back to the drawing board with two separate bills as it should have been to begin with.
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July 2, 2008
Groome - S.C. Supreme Court invalidates "driver's license checkpoint"
Roadblocks in my opinion are unconstitutional. Period. The National Motorists Association says it best:
We oppose the use of roadblocks, period. The only justification for stopping citizens under a roadblock scenario is to warn them of an unseen peril that could cause injury or death to an unsuspecting motorist. So-called "sobriety check points," or seat belt checks, or the myriad of other excuses the government concocts to harass and intimidate its citizens through the use of roadblocks are, in our opinion unconstitutional and in direct contradiction to any honest definition of freedom.
Since the United States Supreme Court does not yet agree, we will have to settle for requiring law enforcement to jump through hoops to demonstrate that their roadblocks are not really for the purpose of general crime control. The S.C. Supreme Court in State v. Groome, decided June 30, held law enforcement to the standards required by Brown v. Texas, City of Indianapolis v. Edmond, and Michigan State Police v. Sitz, and upheld the suppression of evidence by the trial court on the basis that the roadblock was violative of the Fourth Amendment.
In Brown v. Texas in 1979, the U.S. Supreme Court held that a Texas statute allowing police to detain citizens and require them to identify themselves violated the Fourth Amendment because it allowed the detentions without any reasonable suspicion of criminal conduct. It also set forth a three part balancing test for determining the constitutionality of seizures by law enforcement: 1) a weighing of the gravity of the public concerns served by the seizure; 2) the degree to which the seizure advances the public interest, and 3) the severity of the interference with individual liberty.
In 1990 the U.S. Supreme Court held in Michigan State Police v. Sitz that the Brown v. Texas balancing test applies to roadblocks, and, although it reversed the Michigan Court of Appeals and found the roadblock valid, it arguably upheld the requirement that "the degree to which the seizure advances the public interest" must be demonstrated by showing the "effectiveness" of the roadblock.
In City of Indianapolis v. Edmond in 2000, the U.S. Supreme Court held that a checkpoint whose primary purpose is to detect evidence of ordinary criminal wrongdoing is unconstitutional.
In Groome, the S.C. Supreme Court held that there was sufficient evidence for the trial court to find that the primary purpose of the roadblock was crime suppression rather than merely a driver's license checkpoint, in that:
1) the checkpoint was conducted by the Directed Patrol Unit, which is assigned specifically to deal with crime suppression issues;2) a K-9 patrol unit with a nationally certified drug dog team was participating; and,
3) the State presented no evidence as to the plan, procedures, or duration of the roadblock, nor was any evidence of a protocol introduced and as the Supreme Court noted in Edmond, without such information “law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they include a license or sobriety check.”
The Court held that even if the purpose of the roadblock was not general crime suppression, the roadblock was invalid under Brown v. Texas' second requirement because no empirical data was presented at trial to support the effectiveness of the roadblock.
One thing that is disappointing about this case is that the Court did not rule (possibly because the attorneys did not raise the issue) that our State Constitutional protections are separate and independent grounds for their holding. On remand the Michigan Court of Appeals re-affirmed their original ruling in Michigan State Police v. Sitz, and found the checkpoint to be unconstitutional, this time under the Michigan Constitution instead of the Federal Constitution.
Judge Hill was the trial judge, and he as well as the S.C. Supreme Court deserve praise for having the courage to rule against the government in preserving our constitutional rights. However, all roadblocks should be declared unconstitutional, in violation of the South Carolina Constitutional right to freedom from unreasonable search and seizure and as a violation of the right to privacy which is guaranteed by the S.C. Constitution.
Roadblocks are one of the most arrogant and disgusting violations of our privacy and freedom, and Groome, if the U.S. Supreme Court does not overturn it, will help "to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field."
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July 2, 2008
Lying cops
Believe it or not, cops will lie on the witness stand to get convictions and to cover their asses. For example, cops learn over time what statements will get them past a motion to suppress, those facts get copied and pasted from one incident report to another, and the cop will testify to them at trial. "I smelled the odor of burnt marijuana." (Whether or not weed is ultimately found.) "The subject appeared very nervous, fidgeting from foot to foot, would not make eye contact, began sweating profusely, and I noticed his hand was shaking as he took out his wallet."
When it is the defendant's word against the cops, the defendant typically loses. Because cops are trustworthy, credible witnesses(?). Defense lawyers know the cop is lying, the prosecutor knows the cop is lying, and the judge knows the cop is lying - they all have seen it enough times. But unless there is proof that the cop is lying, the judge will rule in the government's favor or the jury will take the cop's word for it.
In a trial last Friday in Los Angeles, the officers testified that they had chased the defendant from his apartment and watched him throw down a black box, which they picked up a few feet from the defendant and discovered that the box contained drugs. But they did not realize that the defense lawyer had obtained video of the incident from a surveillance camera, which showed multiple officers searching for more than 20 minutes before one claimed to have found drugs.
"Be creative in your writing," the officer appears to tell another after the discovery."Oh yeah, don't worry, sin duda [no doubt]," comes the reply.
This case just underscores the importance of an independent investigation - if the defense had not found this video, no-one would have believed the defendant and, although the defendant and possibly the attorney would have known that the cops were lying, they would not have been able to prove it.
There are a few officers that I have the utmost respect for that are candid and take painstaking care to tell the truth to me, to the prosecutor, and on the stand. And then there are the rest.
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July 2, 2008
DNA testing bill waiting for governor's signature
The DNA testing bill did pass the South Carolina Senate and House after all, but has not been signed yet by the governor. The bill in its final form has combined what was two separate bills, one allowing law enforcement to collect DNA samples from persons at the time of their arrest, and a bill which will require authorities to preserve evidence for 7 years or until a convicted person's prison sentence is complete and which will grant inmates access to DNA testing.
Sanford last year vetoed legislation requiring DNA testing when people are arrested. He called it an "overreach by government and an erosion of personal liberty."Unlike fingerprinting, Sanford wrote, DNA "contains a great deal of sensitive personal information. DNA includes, for example, information about disease predisposition, physical attributes, ancestry and familial relationships."
He told legislators he favored taking DNA samples only after a person is convicted.
If Sanford vetoes the bill, it will not get an over-ride vote until January, when the legislature reconvenes.
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July 1, 2008
The devil made me do it
Last Friday, in Pleasant Glade Assembly of God v. Shubert, the Supreme Court of Texas overturned a jury award of $300,000 damages to a girl who claimed she was subjected to an exorcism against her will. There were minimal physical injuries, some cuts and bruises, but the damages were based on emotional distress, which the Court held are not compensable in this type of case.
The Court essentially said that the religious nature of the claim could not be separated from the secular portion of the claim, and that the courts could not decide religious questions:
We have previously said that adjudication of this type of claim “would necessarily require an inquiry into the truth or falsity of religious beliefs that is forbidden by the Constitution.” This type of intangible, psychological injury, without more, cannot ordinarily serve as a basis for a tort claim against a church or its members for its religious practices.
The flip side of this argument, as expressed by Eugene Volokh, is that the religious question can be separated from the tort itself and the damages that flow from it:
The plaintiff alleges -- and the jury apparently believed her -- that she was held down against her will. That's false imprisonment and assault. She also alleges that this physical restraint led to emotional distress damages. This is not a case such as many of the ones the majority cites, in which the emotional distress stemmed from religious speech, or shunning by the community, or other such conduct that is and should be substantively constitutionally protected. Rather, the case involves nonconsensual (or so the jury found) physical touching, conduct that no constitutional guarantee protects.
What is fascinating to me is the dilemma that this type of issue can create in a criminal case. If the Court's holding is that "an inquiry into the truth or falsity of religious beliefs . . . is forbidden by the Constitution," what happens when a person is charged with a crime and the truth or falsity of their religious beliefs goes to the heart of their defense?
Historically, the case that has generated the most attention and controversy would be that of Annelise Michel, who died following a series of exorcisms in Bavaria that were sanctioned by the Catholic Church and spanned a 10 month period. The case was immortalized in the movie "The Exorcism of Emily Rose," which, although not entirely accurate, was thought provoking and an excellent courtroom drama.
Annelise's parents, a priest, and a pastor were prosecuted for negligent homicide for failing to call a medical doctor during the exorcisms. At their trial in 1978, the parents' attorney Erich Schmidt-Leichner argued that:
the exorcism was legal and that the German Constitution protected citizens in the unrestricted exercise of their religious beliefs. The defense played tapes recorded at the exorcism sessions, sometimes featuring what was claimed to be "demons arguing", as proof that Anneliese was indeed possessed. Both priests presented their deeply held conviction that she was possessed, and that she was finally freed by exorcism just before she died. ( wikipedia.org)
What is the result where an individual is believed to be possessed and a homicide results, either by the person who is possessed or by another individual who believes the victim was possessed? The defendant is entitled to present his defense, and that defense might consist of testimony regarding the truth or falsity of religious beliefs, which may be very relevant as to the defendant's subjective state of mind at the time of the incident and intent to commit a crime, as well as any state or defense testimony regarding psychiatric diagnoses.
If an inquiry into the truth or falsity of religious beliefs is forbidden by the Constitution, will the Courts then exclude the defendant's belief as to the truth or falsity of religious beliefs that are central to his defense? I believe that the defendant's right to present a defense would take priority under the Constitution in this situation. Religious beliefs are a valid defense to varying degrees when it involves issues such as refusal of medical treatment or childrearing practices, and yet I wonder if testimony regarding demonic possession or the practice of Voodoo may be denied by a trial court or not even considered by the attorneys.
After watching the movie and reading about the story of Annelise Michel, I have had this discussion with lawyers, and surprisingly found that many, due to their own religious beliefs, would refuse to even consider presenting defenses that involve demonic possession, or the practice of Voodoo, which arises occasionally in South Carolina. Some refuse to even discuss it. I believe that no matter what our personal beliefs, we have a duty to present any defense that is available to a client and these scenarios, although rare, have a direct bearing on the defendant's intent to commit a crime.
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