This post examines a rather unusual stalking case from the Appeals Court of Massachusetts: Commonwealth v. Cristino, 2017 WL 2989723 (2017). The court begins the opinion by explaining that [a]fter a jury trial, the defendant was convicted of two counts of stalking pursuant to [Massachusetts General Laws 265 § 43(a). On appeal, he argues that the evidence presented was insufficient to establish the requisite elements of the offense, and that the judge's denial of his motion for a required finding of not guilty was erroneous. Commonwealth v. Cristino, supra.The Appeals Court goes on to explain how, and why, the prosecution arose:The victims of the defendant's alleged stalking are the chief of police and deputy chief of police in Milford. The evidence against the defendant came primarily from a series of Facebook posts that he made, where he openly criticized the two heads of the police department and accused them of corruption, drinking on the job,…
The Chief of Police, the Facebook Posts and Stalking
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TEN TIPS THAT EVERY NEW ATTORNEY SHOULD KNOW
PERSONAL UPDATE: I woke up this morning realizing that it had been 6 months since my last post. One of the drawbacks to the aging process is that time seems to pass so much faster than when we were younger. I am now a legal resident of North Scottsdale, Arizona but we will continue to spend summers and fall in Minnesota. We just completed construction on a new home way out in Minnestrista (for those of you geographically challenged) Minnestrista is a picturesque small town located on the western edge of lake Minnetonka. Now that the dust has started to settle I will hopefully get back to posting on a more regular basis. If you need to reach me I have a new email: afpendleton@gmail.com. As for this week’s post: Whether you work in a private law firm, city or county Attorneys office, public defenders office, or as a judicial law clerk, someone at your place of employment has responsibility for hiring and firing new attorneys. Over my 36 year legal career I have worked…
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N.D.Ind.: PC for def’s cell phone was shown by his social media postings
Defendant might not have standing but there was probable cause, so standing doesn’t have to be decided. Probable cause for the search warrant for defendant’s cell phone was predicated on his social media postings of him holding firearms, and they … Continue reading →
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Arrested for Drug Possession at NYC’s Madison Square Garden Before the Phish Concert: That’s a Shocker
During the day you are a lawyer, work in finance, a licensed real estate broker, or a school teacher. Maybe you’re a stay-at-home mom or you’re just figuring out what the heck you want to do with your life with your BA in History from Generic State University. Reliving your glory days in college pretending the babysitter isn’t at home with your kids or just trying your hardest to ignore the fact that you have a mortgage or rent payment coming up after the encore, what could be better than getting lost in the moment to Phish’s “Fluffhead” and “Harry Hood?” The real question, however, is not what could be better, but what could be worse? The answer? An arrest for Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03. On its face, going to see Phish certainly could be a release and even a religious experience, but you’re not a reckless college kid anymore (or maybe you are) and you…
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Deadly Air Bags Are Still in Millions of Vehicles Two Years After Recall
The Takata air bag scandal has gone on for more than two years and expanded into the largest recall in history in this country. Alarmingly, millions of drivers are still traveling around with airbags that could explode causing deaths or serious injuries. The air bag recall by the Takata Corp. has grown so massive that vehicle owners face waiting months for repairs, reported the Los Angeles Times. While some dealerships have offered rental cars during the wait, others are reluctant. Meanwhile, many drivers may be unaware their vehicles are subjected to recalls. Deadly air bags are in millions of cars The air bag saga has grown into the largest automotive recall in U.S. history. It’s not the kind of issue that should be ignored. Air bag inflators in 28.8 million cars may propel metal shrapnel into drivers and passengers. Often the air bags can deploy after a mere fender bender. To date, 10 people in the U.S. have been killed by the explosions and more than 100 have been…
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Jacksonville Jaguar arrested for battery and criminal mischief in Florida
Jacksonville professional football player, Dante Fowler, was arrested last week in St. Petersburg, Florida. According an article in the Florida Times Union, Fowler faces a charge of simple battery and criminal mischief. He and the alleged victim engaged in an argument about Fowler’s driving. Fowler then, according to a witness at the scene, began punching the alleged victim. While the physical altercation was going on, Fowler allegedly stomped on the other man’s glasses, causing around two hundred dollars in damage. When police arrived, Fowler was arrested and the man claimed that he did not have any injuries, despite being punched repeatedly. Even though this arrest did not occur in Jacksonville, the laws are the same throughout the state of Florida. Simple battery occurs when you intentionally touch someone against their will or intentionally cause physical harm to someone. As long as the physical harm is not…
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Grossly Improper Closing Argument and Ineffective Assistance– prosecutor’s blatant misstatement of law and insufficient evidence requires reversal and dismissal of conspiracy and tax charges against one defendant; co-defendant prevails on unreliable loss calculations/sentencing issue and remand for evaluation of ineffective assistance claims: United States v. Davis, _ F.3d _ (D.C. Circuit, No. 15-3044, July 21, 2017)
The IRS was not amused by 2FT Fast Facts Tax Service, a tax preparation service owned by Sherri Davis (“Sherri”) and by Davis Financial Services, a similar follow-on operation that it contended was run by her son, Andre Davis (“Andre”), although she was its principal. Both concerns filed returns that falsely reported charitable and business deductions. With the aid of LaDonna Davis (“LaDonna”), Sherri’s niece and employee, and as it turned out, star cooperating witness, the Government indicted Sherri and Andre with conspiracy to defraud the United States by preparing and filing fraudulent and false individual income tax returns, in violation of 18 U.S.C. §§ 2, 371. Other counts charged Sherri and Andre with willfully aiding and assisting in the preparation of false returns, in violation of 26 U.S.C. § 7206(2); and Sherri was further charged with filing false individual returns, in violation of 26 U.S.C. § 7206(1) and…
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Final *Update* On Crash Blocking I84 at 196.5
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: 07/24/2017 11:40 p.m. Please direct questions to the District Office ***Final Update*** On Monday, July 24, 2017, at 6:23 pm, Idaho State Police investigated an injury crash, eastbound on I84 at mile marker 196.5, east of the Hazelton Exit. Terence K. Perry, 34, of Normangee, TX, was driving westbound on the eastbound side of I84 in the one-lane construction zone, in a 2000 Peterbilt semi truck pulling a trailer. Thomas J. Drexel, 67, of Tucson, AZ, was also driving westbound in a 2003 Toyota pick-up pulling a camp trailer. Perry struck the rear of the camp trailer, drove through the median, and came to rest on the actual westbound lanes of I84. Michael R. Sobotka,…
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The Nooses Tighten
As I type this, it is a little after 1 in the morning in Ohio. In just under 9 hours, Ron Phillips will be killed at the Southern Ohio Correctional Facility in Lucasville.The killers will be a group of prison guards. It's duty they've volunteered for. They've chosen, for whatever reason, to kill a man for whom they hold no personal animus, a man who's done them no personal wrong.Those guards won't be acting alone. Killing Ron Phillips wasn't their idea, after all. It was the prosecutor who decided he should be killed and the jurors who agreed. The trial judge signed off on it. So did appellate judges, justices of the Ohio Supreme Court, judges and justices in federal court. The Parole Board was cool with it. So, it seems, is Governor Kasich who's skipping opening day at the state fair to oversee the murder.It doesn't need to happen. We've managed this long without killing him…
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"Could Lyin' Ted replace 'beleagured' Jeff? Trump is 'openly considering removing Attorney General Sessions and could replace him with former enemy Cruz"
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Democracy’s Golden Rules
James T. Kloppenberg, Toward Democracy: The Struggle for Self-Rule in European and American Thought (2016). Roman Hoyos These are interesting times to be an historian of democracy. Historians are beginning to explore the myriad ways that people outside of and even within political officialdom have pressed their claims for recognition, respect, and inclusion in politics, governance, and society. This work is steadily reshaping our understanding of the historical relationships between law, democracy, and the state. At the same time, we have witnessed recently the emergence of a politics that appears to many to have up-ended many of our ideas and practices of democracy. Political ethics of virulent self-aggrandizement, relentless short-term thinking, and total retaliation, in particular, are increasingly prominent. In this moment of heightened attention the question persists: what is democracy? Too often we reduce democracy to principles like majoritarianism,…
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NE: Reach under seat during traffic stop was RS
The officer suspected that a wanted person was in the car defendant was in and stopped it. As he approached the car, the driver reached under the seat. The wanted person wasn’t found, but there was reasonable suspicion from the … Continue reading →
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OR: Emergency aid exception applies to animals in distress
The emergency aid exception applies to animals in distress. Here it was cattle. State v. Hershey, 286 Ore. App. 824, 2017 Ore. App. LEXIS 907 (July 19, 2017). There was plenty of probable cause, but defendant’s Franks argument that the … Continue reading →
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CA9: § 1983 Franks violation: Ignoring alleged false statements still leaves PC
A search warrant was issued for alleged violations of the building code. Ignoring any alleged false statements that led to issuance of the search warrant, there still was probable cause. Gunnels v. Kenny, 2017 U.S. App. LEXIS 13204 (6th Cir. … Continue reading →
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CA10: Where one in car flashed gun in a bar, it was reasonable to order occupants to ground when stopped
Defendant was seen flashing a gun in a bar in Colorado, and police got a specific description including hair braids and dress from the wait staff. When the car was seen, officers ordered the occupants out and to the ground … Continue reading →
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Kane County Reports Rise in Drug Cases While Police Agencies Struggle to Deal With Drug Addiction
Last week, Kane County State’s Attorney, Joe McMahon, reported that Kane County Prosecutors have seen a rise in the number of criminal cases filed in Kane County in the first six months of this year compared to last year. McMahon reports that felony filings are up 15.7% compared to the same period last year. The increase in criminal cases in Kane County is happening with misdemeanor and traffic cases as well. In the first six months of 2017, 1,247 new felony cases were filed. During the same period last year, 1,078 cases were filed. Aurora, the largest city in Kane County, has seen a drop in the number of new felony cases. Most criminal cases in Kane County come from Aurora. The Village of Carpentersville has seen a rise in the number of Retail Theft cases. Carpentersville police attribute this to the opening of a new Walmart in Carpentersville. Elgin, the second largest city in Kane County, has seen a rise in violent crimes. McMahon is concerned with the increase in the…
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CA8 upholds Playpen warrant strictly on GFE despite Rule 41 violation
Playpen warrant upheld purely on good faith exception of Davis and Herring. Rule 41 was violated, but the court finds the costs of exclusion outweight deterrence, particularly where the rule was modified to permit such later warrants. United States v. … Continue reading →
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Unintended Consequences
The Bucks County Courier reports: Shaquana Green and her toddler daughter disappeared during a weekly Saturday afternoon visit in 2012, an incident that Upper Darby police described in court documents as a custody dispute.Fewer than three hours later, the girl was found unharmed near where she was last seen and returned to her legal guardian, who's her paternal grandmother, according to court records. Green was arrested for violating a court custody order that barred her from unsupervised contact with her child. That event is how the 26-year-old Bethlehem woman, a single mother with no prior criminal record, ended up a Pennsylvania sex offender. It's a life-crippling label that Green wouldn't have if she lived in any other state. But when the Pennsylvania Legislature expanded its sex offender law in 2011 in response to federal legislation, it added new crimes, including the one that Green pleaded guilty to in 2013 -- interference with child custody. Under…
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Admitting to Driving in a DUI
A couple was arrested in New Jersey this week for two separate instances of drunk driving, each within six hours of each other according to a report from USA Today’s Daily Record. The boyfriend was the first to be arrested after a police officer responded to a call about a vehicle left on the side of the highway with its engine running, blinker on and keys in the ignition. After a lack of cooperation on the boyfriend’s part and a declined Alcotest (New Jersey’s breathalyzer program), he was arrested and charged with driving while intoxicated, refusing a breath test, open container, consumption of an alcoholic beverage in a motor vehicle, reckless driving, failure to exhibit registration, and disorderly conduct. He was then taken to jail to wait in a holding cell until someone could pick him up. When his girlfriend arrived to do just that, officers noticed the smell of alcohol on her breath. She admitted to drinking earlier in the day,…
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Appeals Court Affirms Dismissal of Case on Speedy Trial Grounds
In Commonwealth v. Davis, the Appeals Court affirmed the allowance of the defendant’s motion to dismiss under Mass.R.Crim.P. 36(b). This rule of criminal procedure addresses a defendant’s right to a speedy trial and allows for a dismissal of the charges where a defendant is not brought to trial within one year after his arraignment, not including any “excludable” time – i.e., any period of delay resulting from justifiable delays or agreed upon continuances, as laid out under the rule. The decision was based on the fact that the defendant was not brought to trial within the requisite one-year time frame, and the Commonwealth failed to demonstrate that the delay was justified. The main focus of the decision was the justification for various “continuances contributing to the delay of the defendant’s trial.” Four of the continuances, “accounting for 268 days, [were] attributable to what the parties agree[d] was court…
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