The United States Supreme Court recently ruled that a subsection of the federal Armed Career Criminal Act, which imposes an increased prison term upon a defendant with three or more prior convictions for a “violent felony,” which is commonly known as the ‘Three strikes and your out rule” infringes upon the Constitution’s guarantee of Due Process. The Supreme Court held that the “residual clause” of this federal statute was unconstitutionally vague such that it fails to give ordinary people fair notice of the conduct it punishes. Our Westchester criminal defense lawyers have long fought against arbitrary definitions and unnecessary harsh resuls for transgressions of criminal law Federal law prohibits convicted felons, persons committed to mental institutions, and a drug user, to ship, possess, and receive firearms, and is generally punishable by up to 10 years imprisonment. 18 U.S.C §922(g). However, the Armed…
NEW SUPREME COURT RULING ON “THREE STRIKES” LAW
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APPELLATE DIVISION SUPPRESSES GUN AND DISMISSES INDICTMENT
Earlier this week a panel of the New York Appellate Division, Second Department published a decision that is of interest to all criminal defense lawyers who handle gun crime cases. In this decision, the New York Court reversed a trial court decision in People v. Graham, where a man was charged with second-degree criminal possession of a weapon and fifth-degree criminal possession of a controlled substance in February 2013. A panel of judges held that the trial court should have suppressed a gun found by police because the man had not been arrested prior to the police discovery of the weapon. An officer who reasonably suspects that a detainee is armed may conduct a frisk or take other protective measures even in the absence of probable cause to arrest. However, a police officer acting on reasonable suspicion that criminal activity is taking place and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the…
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IN: Cell phone photograph of SW sent to officer’s phone satisfied the statute for officer to have warrant for search
The officer here needed a search warrant for defendant’s blood for suspicion of DUI. When the warrant was issued, a photograph of it was sent to his cell phone. Defendant objected to the form of the warrant claiming that it … Continue reading →
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Mass. SJC Orders Solution for “Dookhan Cases” In State Drug Lab Scandal
I’ve written on this blog previously about the Massachusetts drug lab scandal, and I tweeted earlier this week about the latest , very significant development surrounding that scandal. This colossal mess began almost 5 years ago, with the discovery that a Massachusetts drug lab chemist, Annie Dookhan, had spent years intentionally falsifying the lab tests that were submitted to the drug lab for content analysis for use by state prosecutors in drug cases. The cases of approximately 20,000 Massachusetts drug defendants and drug convicts were affected by her actions. For several years now, state and court officials have grappled with what to do with these cases and convictions, which came to be called the “Dookhan defendants.” As bad as that was, it got even worse about a year later, when it came out that yet another staffer in the Massachusetts drug lab, Sonja Farak, was regularly using a variety of the of drugs she was responsible for…
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The Revealing Punch
Some worthless nobody named Richard Spencer* has caught public imagination because he espouses outrageous and repugnant things. In other times, he would be ignored, as there are and always have been nutjobs who say outrageous and repugnant things. They amount to nothing. They are unworthy of our time and attention. As my pal, Mark Bennett, says, attention is currency. Don’t waste it. But Spencer stood on a street in Washington, D.C. and, inexplicably, someone put a camera in front of his face and asked him questions. During the course of the interview, someone sucker punched him. The person who sucker punched Spencer has been doxxed (seriously NSFW and not worthy of even a click). and the forces of love and tolerance have found a new hero. While it’s rather cheap to be a tough guy on the twitters, since it’s all virtue signalling without any need to actually exert physical energy or take personal risk, a great many of the “good guys,” those…
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The Last Credible Voice
According to respectable journalists, President Trump’s press secretary, Sean Spicer, beclowned himself already. Not by the ill-fitting suit he wore, but by declaring the the inauguration drew the “”largest audience to ever witness an inauguration, period.” Granted, the pathological grandiosity has grown tiresome, even if it makes for fun internet memes. Nobody, obviously, is buying. Oh, wait. That was the Women’s March. My bad. In case you’re wonder, all those guys with their backs turned to the motorcade are on overtime. Better safe than sorry. So it begins with the press secretary chastising the media for not telling the narrative the new president prefers. This isn’t exactly news, given that the campaigns relationship to facts hasn’t been warm and close. But here, Spicer’s nailed to the wall. O frabjous day! Callooh! Callay! The job of presidential press secretary is to proffer the administration’s narrative.…
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¿CUANDO SE JODIÓ EL PERÚ? - ¡SIEMPRE HA ESTADO JODIDO!
¿Cuándo se jodió el Perú? Hace algún tiempo se publicó un libro formulando la pregunta del título, y desde entonces se usa la muletilla para justificar lo injustificable, incluso existen personas preguntándose, con la ingenuidad de un loro, “Algo ha pasado en el Perú para que suceda esto” (la mega corrupción). El librito y posteriores análisis sobre lo jodido que está el Perú ha tenido éxito y el pueblo lastimeramente mal educado sigue el juego y opina, opina, como este Abogado en las siguientes líneas. ¿Cuándo se jodió el Perú?, el Perú ha estado SIEMPRE jodido, nací casi al finalizar la década de los 40 (1948) escuchando a mi padre renegar de las injusticias contra el pueblo. Pero no han sido sólo injusticias –lo que bastaría- para cambiar las cosas aunque tengamos que morir en el…
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Women, Inc.
There was a glorious Women’s March on the day after Donald Trump’s inauguration. It was glorious because it happened, an exercise of the right to assemble, to present grievances, to challenge the government. It was glorious because so many women, men too, turned out. Whether they knew the mission of the March isn’t really that important. Even if it was merely to show support for their gender, it’s a perfectly sufficient reason. And if you didn’t agree, so what? They don’t need your approval to march or to express their views, whatever they may be. Nobody forced you to go, though some children might have been corralled into being props. There was silliness, as one might expect, such as writing “messages” to no one on tampons. And someone complained about women being forced to purchase tampons when men get razors for free. Sorry, guys, but our secret is out. In 1972, during what is now known as the second wave of feminism, a…
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SNL On Trump Inaugural
Don't miss SNL's cold open (Vladimir Putin on Trump's inauguration) and the opening monologue by guest host Aziz Ansari excoriating racism and bigotry against immigrants by Trump supporters, whom he calls the “lowercase k.k.k."... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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Commercial Vehicle Crash With Blockage On U.S. Highway 93
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000 Fax (208) 324-7897 For Immediate Release: 1/22/2017 7:34 a.m. Please direct questions to the District Office The Idaho State Police is on scene of a commercial vehicle property damage crash on U.S. Highway 93 at milepost 23, south of Hollister. Both north and southbound lanes are blocked due to emergency traffic. Please use caution in this area and expect delays. More information will be released once available. KL/JMH -------------
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Border Agents Refused Entry to Canadians Who Wanted to March
The Washington Post reports that U.S. Border Patrol Agents refused entry to Canadians who were coming to the U.S. to join the Women's March: U.S. border agents asked what they planned to do in the United States. “We said we were going to... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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Virginia criminal law- Rebuttable presumptions are not okay; permissive inferences are okay
Criminal defendants are presumed innocent, so juries generally cannot be commanded to presume guilt from a set of circumstances and shift to the defendant the obligation to rebut that presumption. On the other hand, Virginia law does not prohibit trial judges from instructing juries on permissive inferences of culpability that can be made from the evidence. Lindsey v. Virginia, ___ Va. ___ (Jan. 19, 2017). Consequently, a judge may not instruct a jury that mere presence in an automobile containing contraband presumes guilt, but a judge may instruct a jury that possession of recently stolen property permits an inference that the defendant stole said property. James Lindsey was charged with third-time felony theft, and the judge told his jury through Instruction 16: “Willful concealment of goods or merchandise while still on the premises of a store is evidence of an intent to convert a nd. defraud the owner of the value of the goods or merchandise, unless there is…
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CA11: First offender DNA sample that should have been destroyed under state law but wasn’t could be used in federal prosecution
Under Georgia law, a DNA sample from a first offender should be expunged from the system when he completes his probation or sentence. This one wasn’t. Whatever the statute says, it doesn’t violate the Fourth Amendment. United States v. Hinton, … Continue reading →
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Making the case again against mandatory minimums
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WV: GSR removal subject to search incident
Taking gunshot residue without a warrant incident to arrest is reasonable because it disappears so fast. [The court analogizes blood alcohol, but GSR can disappear easily within minutes, simply by putting one’s hands in pockets or rubbing hands together.] State … Continue reading →
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CA6: Franks challenges subject to clearly erroneous standard of review; here, materiality not shown
The District Court’s findings under Franks are subject to the clear error standard of review. Here, the officer learned a new fact between the wiretap application and the search warrant application, and there is some surface appeal to apply Franks. … Continue reading →
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Florida Leads Nation in Charging Children as Adults
South Florida prosecutors recently announced they would be charging a Fort Lauderdale teen as an adult for his alleged role in an attempted robbery that resulted in the fatal shooting of a construction worker at a convenience store. The state attorney’s office said the 17-year-old suspect reportedly shot the 33-year-old construction worker, who had just exchanged a $100 bill for several $20 bills. The two reportedly started “tussling” when the suspect held the worker at gunpoint, and the suspect in turn fired at least three shots, killing the worker, police said. When teens are charged as adults, it’s via a process known as “direct file,” spelled out in F.S. 985.557. The statute allows that any child who is 14 or 15 at the time of an alleged offense may be subject to a “discretionary direct file” (the discretion being that of the state attorney’s office) for certain felony offenses, including (but not limited…
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Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal
are here. The usual disclaimers apply. Rank Downloads Paper Title 1 3,889 Do White Police Officers Unfairly Target Black Suspects? John R. Lott and Carlisle E. Moody Crime Prevention Research Center and College of William and Mary - Department of...
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FBI Director James Comey Should Resign
U.S. Justice Department Inspector General Michael Horowitz announced recently that he will conduct an ethics investigation into the handling of Hillary Clinton’s email investigation by FBI Director James B. Comey and the Justice Department. The conservative Wall Street Journal moved quickly to call upon the FBI director to resign. The Boston Globe followed suit. We agree. Botched Investigations and Political Interference Director Comey is three years into his 10-year term, which is set to expire in September of 2023, and has repeatedly come under fire for questionable handing of high profile investigations. There is no question that Comey violated long-established Justice Department protocols with his extremely biased news conference announcing Hillary Clinton’s clearance of any criminal wrongdoing by interjecting his personal views criticizing Clinton and her staff. Comey further politicized the Bureau, and threatened its…
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Conflicts of Interests Not Taken Seriously by Officials or Justices
There has been much media attention given to possible conflicts of interest President Donald Trump will encounter as he serves the interests of the American people while simultaneously serving the interests of his business brand. Exploiting Public Position for Personal Benefit The legal definition of “conflict of interest” is straightforward: “A term used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically pecuniary.” Such conflicts can occur without a public official being aware of it. Take the recent conflict of interest disclosure involving U.S. Supreme Court Chief Justice John Roberts. Writing in a recent Findlaw column, attorney Casey C. Sullivan pointed out that Chief Justice Roberts has more than 1200 shares (valued at…
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