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Counsel’s Unconsented-to Admission to Elements Isn’t a Harbison Error

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In State v. Harbison, 315 N.C. 175 (1985), the North Carolina Supreme Court held that when defense counsel admits the defendant’s guilt to the jury without the defendant’s consent per se ineffective assistance of counsel occurs. The Harbison Court reasoned that when counsel admits guilt without consent, it is essentially the same as entering a guilty plea on the defendant’s behalf without the defendant’s consent. It concluded: “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id. at 180. Back in October 2014, I wrote about a Court of Appeals case decided a month earlier—State v. Wilson, 236 N.C. App. 472 (2014)—that carved out two exceptions to the Harbison rule (that post is here). Wilson held that an unconsented-to admission to an…

Florida Legislature Can’t Cross the Goal Line

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The 2015 and 2016 Florida legislatures had very well thought out Bills to expand the ability of people to expunge and seal their criminal history. Neither session was able to bring either bill into law. In 2017, the legislature seems to have given up for the following reasons: The “Information Age” will soon be at … Continue reading Florida Legislature Can’t Cross the Goal Line

Awakening to a sleepy sentencing debate: do tired federal judges sentence more harshly?

Why The Courts Are Wrong About Calculating HTO Status

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The Definition of Habitual Traffic Offender Section 322.264, Florida Statutes, is not a penalizing statute but simply a defining statute. Once a person has been defined as a Habitual Traffic Offender [HTO] by the Florida Department of Highway Safety and Motor Vehicles [Department] their driving privilege is revoked pursuant to s. 322.27(5)(a), Fla. Stat. How … Continue reading Why The Courts Are Wrong About Calculating HTO Status

Minnesota Man Earns DUI On Frozen Lake

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A Chisago County man is lucky he only earned a DUI after fleeing from police across a frozen lake with his children in the vehicle late last week. The incident occurred last Thursday on Green Lake in Chisago City. According to the police report, officers responded to a call from a concerned citizen that a very intoxicated man was driving on the ice with his children in the car. A deputy drove onto the lake and approached the driver, but the man quickly jumped into his vehicle and took off across the lake. The incident was caught on camera by a nearby ice fisherman, who uploaded the video to Facebook. Caught and Charged Although you can’t see it in the video, the driver eventually came to his senses and stopped his car after driving off the lake. However, he refused to exit his vehicle, so he had to be forcibly removed by sheriff’s deputies. He was charged with second degree DWI and fleeing in a motor vehicle. As we talk about on this page, a second degree DWI is no…

How Much Marijuana Does It Take to Impair Driving?

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A number of posts on this blog have addressed the problems encountered in trying to measure levels of marijuana — or, more accurately the active ingredient Tetrahydrocannabinol ("THC") — in the blood of a person when he was driving.  See, for example, Oregon Legislative Study Criticizes "Per Se" DUI Marijuana Laws and Marijuana Legalization and the California DUI.    More importantly, these and other posts have also raised the related but unanswered question:  How much marijuana in the human body does it take to render a driver unable to safely operate a motor vehicle in the manner of a sober person (the rough definition of "driving under the influence" or "driving while intoxicated")?  See New Efforts to Push Roadside Marijuana DUI Test.  The following excerpts from a recent article in The Atlantic, entitled "When Are You Too Stoned To Drive?", provide an excellent analysis of…

Sentencing Disparity in Federal Cases Borders on Insanity

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Sentencing disparity in child pornography cases is an infectious virus undermining the integrity of the federal judiciary. We discussed this problem as far back as 2010. The problem has gotten worse.   This horrific federal sentencing problem was created, and has been perpetuated, by Congress which revised the U.S. Sentencing Guidelines nine times between 1987 and 2009. The result of this Congressional meddling has been dramatic: for example, in 1997, the average sentence imposed in a child pornography case was 20 months and by 2010, it had increased to 118 months. Today is not uncommon to see a sentence of one year to 25 years imposed in child pornography cases whose factual circumstances are remarkably similar.   Striking Disparities Exist Within Districts   In 2013, the Sentencing Law and Policy blog did a brief, cursory examination of one small homogenous federal district court’s sentencing in child pornography cases. The result was striking as…

What is Vehicular Homicide and What Are the Penalties if I’m Charged With this Crime in MA?

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In Massachusetts, if you fatally injure another person while recklessly or negligently operating a motor vehicle, you may be charged with vehicular homicide. The severity of the charges you’re facing will be largely dependent on the unique circumstances of your case. For example, if you were committing a minor, misdemeanor offense when the accident occurred – such as speeding – you will likely be charged with a misdemeanor offense. If you were intoxicated at the time, however, the charge may be elevated to a felony offense. A skilled MA criminal defense attorney can help you determine the next steps if you are facing these serious charges. Misdemeanor Vehicular Homicide Although serious, penalties for this charge are dramatically different from that of a felony offense. If you are charged with a misdemeanor offense, you may face the following penalties and fines: Mandatory 30 days in jail Up to two-and-a-half years in jail Up to $3,000 in fines Up to a 15 year…

WaPo: What’s missing in the government’s briefs in the Playpen warrant cases

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WaPo: What’s missing in the government’s briefs in the Playpen warrant cases by Orin Kerr: As regular readers know, dozens of federal district courts around the country have ruled on motions to suppress evidence in cases arising from the Playpen … Continue reading →

Possession with Intent to Smoke (2)

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What I’m about to say may come as a shock to folks unfamiliar with the workings of our government. Our government officials exaggerate. Yes, I’m as tired of old cliches as you are.   That being said, please don’t stop reading just because we’re starting out with a cliche.  Behind every cliche there may be a nugget of truth lurking. Today, our Circle of Distrust involves law enforcement, and their habit of exaggerating arrest reports.  Why should we care if cops lie a little?  Well, an exaggerated arrest report leads to exaggerated charges, and in the end, harsher sentences.   Imagine a horror movie with a Butterfly Effect, where small acts snowball as the movie progresses and there’s blood everywhere by the ending credits.  Trust me, these exaggerations are a major source of injustice. Every crime has some sort of enhancement lurking, and cops exploit these nuances.  Our real life example for today…

Using USEPA CID to Provide 24/7 Security for Pruitt is Misguided

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The new USEPA Administrator, Scott Pruitt, is expected to request an around-the-clock security detail from the USEPA, according to an internal USEPA e-mail.  This security request is in addition to the security staffing already provided by the USEPA.  The USEPA's existing Protection Services Detail (PSD) is a small staff (usually six-to-eight people) charged with protecting the USEPA administrator (providing door-to-door services, including agents providing transportation to and from work and any travel to events during the workday or on international business trips).  When the USEPA administrator travels domestically, USEPA CID special agents from the local Region's criminal enforcement office are asked to pitch in and help out.  The PSD does not currently have enough people to provide the around-the-clock security detail. So where would the around-the-clock security detail come from?  While security has increased dramatically since September…

GA: State computer privacy statute doesn’t protect IP information from third-party disclosure

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A state computer privacy statute cannot be interpreted to protect IP information from administrative subpoena. The state courts have already held it isn’t protected because it’s third-party information. Courtney v. State, 2017 Ga. App. LEXIS 56 (Feb. 17, 2017): Here, … Continue reading →

D.Neb.: Govt proved inventory valid and not pretext; there was also PC for the search

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Defendants were arrested for robbery, and they objected to the R&R as failing to consider that the inventory of the vehicle was a pretext for an investigative search. The court finds that the policy on inventory was followed and that … Continue reading →

E.D.Mich.: Def’s frisk turned up no weapon; officer asked him to give up gun and he wouldn’t be prosecuted; consent coerced

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Defendant was frisked and no weapon was found. The officer told him that if he gave up the gun he wouldn’t be prosecuted. He did, and that was a coerced consent and admission of the gun. Suppressed. United States v. … Continue reading →

CA7: No REP re conversations with co-defs in back of a police van

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Chicago courts had previously found a distinction between the reasonable expectation of privacy in conversations held in the back of a police squad car and a police van (called a squadrol). The circuit ends this distinction finding it unsupportable. There … Continue reading →

S.D.N.Y.: One officer nearly immediately running dog around car while second dealt with stop was reasonable

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One officer running a dog around a car while the license was being checked was reasonable. The dog, of course, alerted. United States v. Dominguez-Villa, 2017 U.S. Dist. LEXIS 20949 (S.D. N.Y. Feb. 14, 2017). “Between the female passenger’s attempt … Continue reading →

Florida Case Interrupts the Statute of Limitations

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A crime that was committed more than a specific quantified number of years ago may be subject to a statute of limitation which is basically a clock making sure prosecutions don’t move forward in an attempt to prosecute a crime based on physical evidence or eyewitness testimony that may have deteriorated in its reliability over the passage of time. After the time period of the particular statute has run out, the accused, for all intents and purposes cannot be prosecuted for the alleged crime. Certain crimes do not have a statute of limitation. A criminal homicide, for example, has none. Some states vary in which crimes are covered by this statute such as various violent crimes, sex offenses involving minors, kidnapping, arson, forgery and other offenses. Continue reading →

ID: Def consented to search of person and lifted shirt revealing baggie of MJ

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Defendant consented to a search for weapons, and lifted his shirt, and the officer saw a baggie of marijuana sticking out of his pants. The view was valid, and the seizure did not exceed the scope of consent. State v. … Continue reading →

Provoked And Triggered: The End Of Milo?

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These three things can be true at the same time: Milo Yiannopoulos is a glib, disgusting, provocateur. Milo Yiannopoulos provided a valuable counterpoint to the forces of political correctness. Milo Yiannopoulos overplayed his hand, went outside the realm of political correctness, into the realm of promoting criminal conduct, and deserves everything that happened to him. Yesterday was not a good day for Milo. On Monday, the organizers of the Conservative Political Action Conference rescinded their invitation for him to speak this week. Simon & Schuster said it was canceling publication of “Dangerous” after standing by him through weeks of criticism of the deal. And Breitbart itself was reportedly reconsidering his role amid calls online for it to sever ties with him. As Icarus learned, fly too high and bad things happen. Milo was soaring. Mr. Yiannopoulos was just getting a foothold in the media. He recently appeared on the comedian Bill…

Oded on Individual Accountability for Corporate Corruption

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Sharon Oded (Rotterdam Institute of Law and Economics) has posted Coughing Up Executives or Rolling the Dice?: Individual Accountability for Corporate Corruption (Yale Law & Policy Review, Vol. 35, No. 1, 2016) on SSRN. Here is the abstract: “Flesh-and-blood” corporate...
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