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