Liberty's last champion is the motto of the FACDL. With all due respect to our colleagues, under the new Trump administration, it is becoming abundantly clear that the last champion of freedom, liberty, and all that the Constitution stands for is and will continue to be.... (this isn't easy for us)JUDGES. The 45th President of the United States banned the entry of refugees into our country from several other countries on Friday. By Friday evening, there was chaos at airports around the nation and around the world. Families with green cards who have gone through a two year process of being vetted and approved were being detained at airports. Individuals who were doctors, scientists, and who had assisted US forces in Iraq were being denied entry and re-entry into the US. Thus is the outcome when amateurs dable in US policy and when orders are issued by a tyrant based on populist whims. In stepped the ACLU who filed an emergency lawsuit heard by US…
LIBERTY'S LAST DEFENDER
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Can Anxiety and depression be a defense to a DUI charge in Massachusetts?
When a person is pulled over and ultimately arrested for a drunk driving called OUI in Massachusetts and DUI in most parts of the country, most people would inherently draw a link between drinking and driving. Teenagers, especially, are quick to be stereotyped and labeled for this “behavior”. What if they were exhibiting symptoms of being drunk, while actually suffering from anxiety or depression? While anxiety and depression symptoms range from person to person, often times the many symptoms are nearly identical to the symptoms that someone under the influence could exhibit. Anxiety disorders, time and time again, have proven to be the most common mental illness among Americans; many Americans fail to seek treatment for their illness and end up suffering from a host of devastating symptoms. The ADAA, or The Anxiety and Depression Association of America reported that if a person suffers from anxiety, it is definitely not uncommon for them to…
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Case o' The Week: The Slings and Arrows of Outrageous Fortune - Simon and Guideline Sentencing of Hobbes Act conspiracies
2B, or Not 2B? That is the question.United States v. Simon, 2016 Westlaw 6610233 (9thCir. Nov. 9, 2017)(mem.) Ord. granting en banc review, No. 15-10203, Jan. 27, 2017, order available here. Players:Order granting call for en banc review by Chief Judge Thomas. Underlying mem dispo by Judges Graber and Murguia, and District Judge O’Connell. Hon. Judge GraberFacts: Simon and co-Ds conspired with a CI to rob drugs from a delivery van. Id. at *1. Simon, arrested on route to the robbery, had a gun. Id. He was convicted after trial of § 1951, § 922(g), § 371, and § 659 (Hobbes Act conspiracy, felon in possession, conspiracy to commit theft in interstate shipment, and theft). Id. Simon was sentenced to 192 months. Id. The district court applied U.S.S.G. § 2X1.1 – the “conspiracy” cross-reference guideline. Id. at *2; see also Guideline § 2X1.1 here. The court used this cross-reference to apply several…
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Can I Get a DUI for Taking Prescription Drugs?
Although DUI is usually associated with drunk driving, Illinois law actually prohibits operating a motor vehicle while under the influence of any drug or controlled substance. This can even include a legal prescription drug. To avoid a DUI conviction, a defendant must prove not only that he or she had a valid prescription, but he or she also used the drug in a manner that did not prevent him or her from driving safely. Driver Must Prove Xanax Did Not Impair His Driving In a recent Illinois case, police arrested a man for DUI after blood and urine tests revealed the presence of alprazolam in his system. Alprazolam, better known as Xanax, is a prescription drug used to treat anxiety disorders. The defendant held a lawful prescription for Xanax, with instructions to take two pills per day. Under Illinois law, a driver's license is automatically suspended when a blood test reveals the presence of a controlled substance. Here, the defendant challenged his…
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Injury Crash In Valley County
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 3 Patrol 700 S. Stratford Dr., Meridian 83642 (208) 846-7550 Fax (208) 846-7520 For Immediate Release: 01/29/2017 8:50 P.M. Please direct questions to the District Office On Sunday, January 29, 2017, at approximately 4:00 P.M., Idaho State Police investigated a two vehicle injury crash at the intersection of Farm to Market Road and Potter Lane, in Valley County. Collett Adams, 22, of Donnelly, was driving northbound on Farm to Market Road in a 2000 Subaru Forester. Adam's vehicle slid, crossed into the southbound lanes, and collided with a 2015 Ram pick-up, driven by David Jedry, 40, Lake Fork. Jedry had slowed to almost a complete stop before the collision occurred. All parties involved were wearing a seatbelt. Adam's and her juvenile passenger were transported…
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IA: Two finding defective inventory due to police investigative motive
“In any event, it is clear that Officer Carter failed to remove the license plates and registration receipt before impounding the car. Because the officer overlooked the legislatively imposed requirements for the impoundment, it appears he was motivated solely by … Continue reading →
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OH5: MJ grow in back yard visible from next door permitted officers to come to house to inquire
Defendant’s back porch was not curtilage. [Wrong! It is. We’ll just pretend the court didn’t say that.] Marijuana growing in the back yard was visible from the next door neighbor’s property, and that brought the officers to the house to … Continue reading →
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PA: Warrantless blood draw of unconscious def after car wreck was reasonable
A warrantless blood draw was permissible where defendant was unconscious at the scene of an accident and unconscious through the blood draw at the hospital. Commonwealth v. March, 2017 PA Super 18, 2017 Pa. Super. LEXIS 46 (Jan. 26, 2017). … Continue reading →
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Whittling Away at Trademark Law’s Notions of Harm
Michael Handler, What Can Harm the Reputation of a Trademark? A Critical Re-Evaluation of Dilution by Tarnishment, 106 Trademark Rep. 639 (2016). Stacey L. Dogan In recent decades, numerous scholars have challenged trademark law’s various conceptions of harm. Unlike copyright and patent law, trademark law positions itself as a harm-avoidance regime, rather than a mechanism for capturing economic rents. At least under the dominant theoretical model, the law seeks to promote competition by ensuring the accuracy and reliability of source-indicating symbols in markets. In practice, however, the harm narrative often breaks down under scrutiny. Recent articles have taken issue with the assorted harms that trademark law purports to prevent. From dilution by blurring to “irrelevant” confusion, critics have argued that at least some of the injuries targeted by trademark law are illusory. In What Can Harm the Reputation of a Trademark?, Michael Handler adds to this…
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The Work of a Forensic Accountant
If you’re new to the world of forensic accounting (also called investigative accounting), this video will give you an idea of the types of cases a forensic accountant might work on. There is quite a variety in the work, but most of it has something to do with fraud or litigation.
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KY: SW moots consent argument
Officers entered defendant’s home to secure a firearm and then returned with a search warrant. Defendant’s consent argument is moot. Lundy v. Commonwealth, 2017 Ky. App. LEXIS 22 (Jan. 27, 2017). The court properly overruled defendant’s motion to suppress a … Continue reading →
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CA8: Smell of MJ from car was PC
Defendant was stopped for no license plate and weaving. When the window came down, the smell of marijuana was apparent. The driver appeared under the influence. The passenger became agitated, and that confirmed to the officer he was too. A … Continue reading →
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CA3: Disavowal of cell phone in car was a waiver of standing
The search of the call log on the cell phone in the car defendant was driving a year before Riley was valid. He also disavowed the cell phone and lacks standing. United States v. Monestime, 2017 U.S. App. LEXIS 1501 … Continue reading →
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Crisis? What Crisis?
The official position of the president is that everything went great this weekend in the Immigration Executive Order. “It’s working out very nicely,” Trump told reporters early Saturday evening. In fact, Trump pointed to the airports themselves as proof: “You see it at the airports, you see it all over, its working out very nicely, and we’re going to have a very strict ban, and we’re going to have extreme vetting, which we should have had in this country for many years.” For most administrations, “very nicely” doesn’t include emergency stays granted by judges around the country. But while protesters chilled screaming into the void, and the ACLU counted its money and did its victory dance. adherence to the orders was haphazard. According to widespread but largely unverified reports, after being detained at great length, handcuffed, having their social media accounts inspected, being questioned about how feel about…
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Rivera on International Extradition
Artemio Rivera has posted Probable Cause and Due Process in International Extradition (American Criminal Law Review, Vol. 54, 2017) on SSRN. Here is the abstract: At an international extradition hearing, the government must prove there is probable cause that the...
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LO QUE SE DICE Y LO QUE SE HACE
El Comercio LUNES 30 DE ENERO DEL 2017 | 06:00 Lo que se dice y lo que se calla, por José Antonio Hernández "El currículo busca que se respete a las personas, sea cual sea su orientación sexual". El personaje que suscribe el comentario tiene la DESFACHATEZ de escribir lo siguiente: “Si enseñar el respeto, desterrar el odio a los que son diferentes y promover la igualdad de oportunidades es algo que le disgusta a alguien porque colisiona con sus valores y su visión de la sociedad, propongo que no se calle. Si se está contra la igualdad entre hombres y mujeres y a favor de la discriminación, que en el debate público se defiendan estas propuestas. Sin tapujos y sin ocultarse detrás de acusaciones vagas e inconcretas” Como él TODOS –debidamente recompensados- defensores de la igualdad, identidad, o como les guste denominar a la curricula escolar en la parte que…
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Second-Degree Burglary, the Cell Phone and the Fifth Amendment
This post examines a recent opinion from the Court of Appeals of Minnesota: State v. Diamond, 2017 WL 163710 (2017). The court begins the opinion by explaining that[a]ppellant Matthew Vaughn Diamond appeals his convictions of second-degree burglary, misdemeanor theft, and fourth-degree criminal damage to property following a jury trial. On appeal, Diamond argues his convictions must be reversed because. . . . the district court violated his Fifth Amendment privilege against compelled self-incrimination by ordering him to provide his fingerprint so police could search his cellphone. . . . State v. Diamond, supra.Then, as courts usually do, the Court of Appeals explains how, and why, the prosecution arose:On October 30, 2014, M.H. left her Chaska home between 10:30 and 10:45 a.m. to run errands. M.H. returned home around noon and noticed that the attached garage's side-entry door appeared to have been kicked in from the outside. M.H. called the police after discovering…
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The Baylor Conspiracy
Fifty-two rapes? That’s shocking. If true, it’s outrageous. And according to the suit filed by “Elizabeth Doe,” they happened at Baylor University. A former Baylor University student who says she was raped by two football players filed a federal lawsuit Friday against the school that alleges there were dozens more assaults of women involving other players. The lawsuit by the student, who is listed in the documents only as “Elizabeth Doe,” alleges at least 52 rapes by more than 30 football players over a four-year period. It also alleges a “culture of sexual violence” and describes her 2013 attack by two players. It doesn’t detail the other alleged attacks, but says some were recorded by the players, who shared them with friends. Baylor has had issues, including those leading to its president, Kenneth Starr’s, departure. But if this is accurate, it reflects a conspiracy of monumental proportions. In the lawsuit…
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Time for Texas to 'Raise the Age' for adult crimes from 17 to 18
Youth from around the state will arrive at the Texas capitol today to support raising the age of criminal responsibility from 17 to 18. The event comes on the heels of the suicide death of 17-year old Emmanuel Akueir last week in a Fort Bend County Jail cell, highlighting the particular strains which are placed on young people when they're locked up as adults. This tragedy emphasizes why Sheriffs have been supportive of the idea: their facilities aren't really designed to house and manage juveniles, and youth like Mr. Akueir pay the steepest price.Texas is one of seven states where the age of criminal responsibility is below 18, and other such jurisdictions are also reconsidering the policy. In North Carolina, Politifact evaluated claims that a short-term investment in raising the age would save money in the long run. They dubbed the claim "mostly true," concluding that:other states have found juvenile justice reforms including taking teenage offenders out…
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The Sane Branch of Government
We live in strange times. But I still have faith in the judiciary and in lawyers. It took us just over a week of the Trump presidency to reach our first constitutional crisis, and the judiciary seems to be keeping its head. That branch of government will be tested in the months and years to come. Our President reveres President Andrew Jackson. Andrew Jackson is perhaps best known for defying a court order so that he could could deport people in massive scale. In response to the United States Supreme Court’s ruling in Worcester v. Georgia, President Jackson said “John Marshal has made his decision, now let him enforce it.” That case was also an injunction case. Six years after the ruling in Worcester, the Cherokee were forcibly relocated to Oklahoma in what was one of the darkest moments in American history. The parallels between then and now and between the historic president and the modern one who reveres him are clear. But I have faith in the judiciary and…
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