Here are some details of the planned military strike on Syria. The UK is expected to assist the U.S. Tomahawk missiles are likely.
The blitz may last 48 hours.
The missiles would be unleashed to destroy Syrian President Bashar Assad’s...
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US Plans Missile Attack on Syria
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WaPo: Here's how phone metadata can reveal your affairs, abortions, and other secrets
WaPo: Here's how phone metadata can reveal your affairs, abortions, and other secrets by Anthony Lee
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SFGate: S.F. cops will wear cameras to record searches
SFGate: S.F. cops will wear cameras to record searches by Jaxon Van Derbeken:
[...] Read more!
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The Hill: US requested data on at least 20,000 Facebook users
The Hill: US requested data on at least 20,000 Facebook users by Brendan Sasso:
[...] Read more!
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Civil Service Commission
In two separate CPLR article 78 proceedings petitioners seek to compel civil service reclassification of the positions of criminal investigators in the Nassau County and Orange County District Attorneys' offices. The asserted ground in both cases is the confidential character of the work done by the investigators. Supreme Court granted judgment in favor of petitioners in both cases. The Appellate Division reversed and dismissed the proceedings. Petitioners appeal.
A Nassau Criminal Lawyer said that, petitioner, the Nassau County District Attorney, seeks to annul the determination of the Nassau County Civil Service Commission denying his request to reclassify criminal investigators in his office, for appointment purposes, as "exempt" instead of "competitive" and "non-competitive". Petitioner, a provisional appointee to the position of Criminal Investigator in the Orange County District Attorney's Office, seeks to compel the State Civil Service Commission to reclassify that position as "non-competitive" or "exempt".
The issue in this case is whether administrative refusal to reclassify all criminal investigators as exempt or noncompetitive lacks a reasonable basis, because the investigators act in a confidential capacity, and is therefore invalid.
The Court held that in each case, there should be an affirmance. Petitioners' bare contention that the confidentiality expected of criminal investigators makes competitive classification of any investigators impracticable is insufficient to invalidate the classifications made. Moreover, it cannot be said that exempt classification of criminal investigators in some District Attorneys' offices, by that fact alone, makes competitive or noncompetitive classification in other offices arbitrary.
The Nassau County District Attorney's Office, a relatively large office in a metropolitan county, employs numerous criminal investigators. The position of chief investigator and the two deputy chief investigator positions are classified noncompetitive, while the remainder of the positions is classified competitive by the Nassau County Civil Service Commission. After a hearing held on June 17, 1976, at which District Attorney Dillon presented his case for reclassification, the commission declined to reclassify the positions, finding that the duties and level of confidentiality had "not appreciably changed" since the matter had last been considered in 1968-1969. Special Term noting that the positions "are of a confidential and sensitive nature" granted judgment to petitioner annulling the determination of the Nassau County Civil Service Commission. A unanimous Appellate Division reversed.
The Orange County District Attorney's Office, a much smaller office, employs only three criminal investigators. The chief criminal investigator is classified "exempt", while the senior criminal investigator and the criminal investigator are classified "competitive". Petitioner received a provisional appointment as criminal investigator on March 18, 1974. Subsequently, he took the competitive civil service examination for that position, and passed it, but did not score well enough to be eligible for permanent appointment. The Orange County District Attorney has not yet replaced petitioner with anyone from the eligible lists submitted to him. On May 19, 1975, after the State Civil Service Commission denied the District Attorney's request to reclassify the position as noncompetitive, petitioner brought this proceeding to direct the commission to place the position in the noncompetitive or exempt class. Special Term granted judgment to petitioner for reasons similar to those stated in the Nassau County case. The Appellate Division unanimously reversed.
Petitioners contend that the confidentiality of the position of criminal investigator should prevent classification of the position as "competitive". Petitioner seeks an "exempt" classification for all of his investigators; petitioner would be satisfied with a "non-competitive" classification. Petitioners contend that qualities of character, not easily tested by examination, are required of criminal investigators. The exceptional confidential nature of the position, in particular, is advanced as a justification for exempt or noncompetitive status.
An important factor to consider in deciding whether a position should be classified noncompetitive or exempt is whether it involves highly confidential duties. At the same time, the need for confidentiality, alone, does not mandate an exempt classification. Other factors may and should be considered, and presumably were considered in these cases. Classifications made by a civil service commission are subject only to limited judicial review. Only if the classification lacks any basis in harmony with the constitutionally mandated merit selection system for civil service employees may the determination be overturned by the courts in a proceeding in the nature of mandamus.
By way of caveat, it should be noted that these cases would be more difficult to resolve, even given the limited scope of judicial review in mandamus, had the respective Civil Service Commissions classified all criminal investigators "competitive", or had petitioners challenged the refusal to classify even a small percentage of investigators as "exempt". It may well be that a District Attorney is entitled to have one or, in a larger office, several investigators who enjoy his complete personal confidence. So, too, in the rare case, there may be a legitimate basis for creating a few positions for specialists outside the tenured career lines of appointment and promotion. There may be investigative tasks for which the trust of the District Attorney might be considered more important than any measurable objective characteristic.
But petitioners do not make such challenges. Hence, such challenges were not before the commissions and are not now before the court. Instead, petitioners assert, in effect, that classification of any investigators as competitive is arbitrary and capricious. Petitioner Dillon makes no distinctions among the many investigative positions in his office. Petitioner contends similarly that even the lowest-ranking investigator in the Orange County office may not be classified "competitive". This absolutist position is unpersuasive.
In one case, involving classification of process servers in a District Attorney's office, Chief Judge outlined the wisdom of classifying some positions within a given title exempt, and others competitive: "We may assume that the classification of twelve of the original sixty positions of process server in the exempt class, while forty-eight of the positions with that title were classified in the competitive class, was made because the Commission found that for the performance of some duties a few men were needed with special qualities for which an examination would furnish no practicable test. Ability to perform the routine duties of a process server would not prove fitness to perform those duties which, in the opinion of the Commission, could be performed only by men selected by the District Attorney because of their personal qualities". More recently, the court again acknowledged the propriety of similar titles with different civil service classifications.
Thus, the classification problem cannot be resolved by resort to absolutes. Just as petitioners' argument that no investigators may be classified as competitive must be rejected, were the Civil Service Commission, in the face of a demonstrable need for some exempt or noncompetitive positions, to insist on classifying all positions competitive, that classification might well be struck down as unreasonable. On the record in these cases, however, the classifications cannot be termed arbitrary.
On this analysis, it is not decisive that in some other counties, because of the possible or likely variation in local circumstances, all criminal investigators are classified exempt. There is a measure of flexibility allowed a civil service commission, beyond judicial review, in deciding whether to classify investigators "exempt", and how many to so classify. While in some countries all investigators are classified exempt, in others all are classified competitive, and in still others, as in Nassau and Orange, there is a combination of classifications. The difference in treatment, taken alone, does not establish that any one classification or that the State-wide pattern is arbitrary. Instead, a petitioner must show that the determination by which he feels aggrieved cannot stand on any reasonable basis. Or a petitioner must show at least that the State-wide pattern is not based legitimately on local variations in conditions, office organization, availability and use of coexistent police resources, and the like. Even then for a petitioner to prevail he must show that the classification he seeks is the right one; it is not enough to show that a classification elsewhere is the wrong one. The petitioners in this case have not demonstrated any of these defects. But it does not mean that a proper case for excluding confidential investigators from the competitive class could never be made out.
Accordingly, the orders of the Appellate Division should be affirmed, without costs.
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Lege committee looking to tweak Drivers Responsibility Program; incentive program about to gear up
The Texas House Homeland Security and Public Safety Committee plans to draft legislation during the interim to reform, but likely not eliminate, the Driver Responsibility Surcharge - at least unless somebody finds a source to supplant the revenue generated by the program. Go here to watch Monday's hearing online, with the portion on surcharges beginning at the 1:37:15 mark.Rebekah Hibbs, who runs the program for DPS, told the committee a new "incentive" program for drivers between 125% and 300% of federal poverty levels will come online by the first of October, joining a more generous indigency program created in 2010. Drivers who qualify can have their surcharges reduced by 50% and pay the amount in a lump sum or over a six month stretch. (Those who qualify for the indigence program can have them reduced even more.)Only four states have similar programs and none are very successful, said committee Chairman Joe Pickett, who appears to have been delving into the weeds on the topic. Since the Driver Responsibility Program's implementation in 2003, the state has assessed $3.2 billion in surcharges but only received about $1.2 billion in payments. That $2 billion in unpaid surcharges has caused a couple of million drivers to lose their licenses, with more than 1.2 million of them still suspended as of this week. Because most of these are working people who need their car to drive, Williamson County Justice of the Peace Edna Staudt told the committee, they usually continue to drive anyway.Staudt and Hibbs disputed whether DPS will allow those folks to get an occupational license. Hibbs insisted it was legal but Judge Staudt said as a practical matter "they won't do it." A committee member who was an attorney (couldn't tell who from the video) said his firm charges $2,500 to secure an occupational license, so that's probably not a realistic option for low-income folks, anyway.These surcharges are issued for too accruing many points from moving violations, driving without insurance, driving with a suspended license, and DWI, but the driver of such enormous numbers are tickets for no insurance. This can create a vicious cycle: People can't afford insurance and get ticketed. They pay the ticket but can't afford the surcharge so their license is suspended, anyway. Because they must get to work, they keep driving, then if they're stopped again they get more surcharges for both the insurance offense and driving with a suspended license.By then, even if they pay the surcharges their license is still suspended for at least a year, giving them little incentive to pay up. To get their license reinstated they must pay even more fees - between $100 and $425, the committee was told. No wonder nearly 2/3 of surcharges go unpaid.In response to questioning, Hibbs told the committee that these surcharges could be eliminated through Chapter 13 bankruptcies but not Chapter 7. Rep. Dan Flynn pointed out the oddity of that situation: Chapter 13 is a reorganization of debt while typically Chapter 7 is more sweeping. But Hibbs said a case styled Holder v. State of Texas (a driver named Holder, not the US Attorney General) found that the surcharges were essentially similar to a criminal punishment and therefore couldn't be vacated. That's bizarre considering these are explicitly civil surcharges over and above any criminal penalties, but that was the ruling.Judge Staudt argued for abolishing the program entirely and going back to punishing these offenses exclusively through the court system. "It's an unjust program," she told the committee. Texas is "creating a debtors prison," she said, lamenting that there's "no due process" in the application of surcharges.Chairman Pickett asked Staudt how to replace the trauma care funding and she suggested it would be better to do it through court fees, which are presently $95 on most traffic tickets, she told the committee. Pickett said there was "no way" the Lege would eliminate the program without an alternative funding source but Staudt replied, "I beg you to look at the fact that you're going to have to put the need for the money aside." Right now, she pointed out, the "state gets money from the program but the counties, the courts, and the people are paying the price." The overall cost to the locals, she said, was greater than the benefit to the state.Grits should also mention a report from the state auditor issued earlier this year on the contract with Municipal Services Bureau to run collections for the surcharge program. The report criticized DPS for two significant errors: Failing to run the contract by the Legislative Budget Board before approval and failure to notify competing bidders of changes to the RFP. That gave MSB the upper hand because competitors didn't know to update their bid applications in light of additional requirements. The audit was not discussed at Monday's hearing but Hibbs told the committee the contract will be up for re-bid in late 2014.The audit also revealed that MSB is raking in more money than just the 4% commission that's been previously disclosed, charging debit and credit card fees as well as an extra fee for each payment in an installment plan. According to the audit, "For example, an individual convicted of driving while intoxicated will be assessed a surcharge of $1,000 per year for three years. If the individual uses a credit card to make monthly installment payments over three years, that individual would pay a toal of $3,286.50: $120 in service fees, $76.50 in credit card fees (unless prohibited by law), $90 in installment fees, and the $3,000 surcharge." By those figures, MSB would be charging drivers an additional 5.5% on top of their 4% commission if they used a credit card to pay in installments. In all the years Grits has been working on this issue, that's the first I've heard of those extra costs.Rep. Dan Flynn said the committee is looking more seriously at revamping the program than ever before and that appears to be the case. If one were to judge by suggestions from Hibbs and Staudt at the hearing, we could see them eliminate or scale back mandatory drivers license suspensions and perhaps explicitly change the law to allow surcharges to be discharged through bankruptcy proceedings. They could also streamline the occupational license program so you don't have to pay a lawyer $2,500 to get one. (Hibbs said she'd sent three pages of reform suggestions to Pickett, but when Grits requested the document from DPS their public information office wouldn't give it to me and said to file an open records request. I did; more on that later, hopefully.)Really, though, Judge Staudt nailed it: This is a bad, "unjust" program that should be flat-out eliminated. If the state wants to subsidize trauma hospitals (despite all the Ted Cruz rhetoric hailing the benefits of market forces in healthcare), they should do it with general revenue dollars. The state hasn't even been paying hospitals the full amount, instead using DRP funds to "certify" the budget instead of doling out the full sums. Punish traffic fines through the courts: At the end of the day, the DRP surcharge is and always has been just a tax by another name.Pickett said he expected this issue to be among the committee's interim charges when they're finally released, meaning they'd likely have at least one more hearing on the topic before the 84th session convenes in 2015. However, he said he hoped to have a first draft of possible reform legislation put together by the end of the year.See prior, related Grits posts:Piling on: TPPF offers more reasons to abolish Driver Responsibility surcharge House rep promotes abolition of Driver Responsibility surcharge Is 2013 the year legislators axe Orwellian-named Driver Responsibility surcharge?Did the Driver Responsibility Surcharge cause Texas' voter ID law to be rejected?Few defendants getting surcharges waived by judges based on indigenceGrits to DPS: Enact incentive rules for Driver Responsibility surcharge nowAmendment tells DPS: Implement incentive rules for Driver Responsibility surcharge Hospitals: Driver Responsibility surcharge an unreliable funding sourceWhat's the one thing John Whitmire and Leo Berman have in common?Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge Federal suit filed to declare Driver Responsibility surcharge unconstitutionalDPS Director: No public safety benefit from Driver Responsibility SurchargeProsecutors altering charging decisions to avoid Driver Responsibility surchargeDriver surcharge boosting Texas joblessnessUnexplored costs from DPS surcharge harm safety, the economy Driver Responsibility surcharge 'devastating' for court systemBill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'
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Wants to withdraw guilty plea
The defendant moves by way of coramnobis to vacate and set aside a judgment dated February 3rd, 1958, convicting him, on his own plea of guilty, of the crime of grand larceny in the second degree, and sentencing him to...
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Joh on Policing and Genetic Privacy
Elizabeth E. Joh (U.C. Davis School of Law) has posted Maryland v. King: Policing and Genetic Privacy (__ Ohio State Journal of Criminal Law __ (2013, Forthcoming)) on SSRN. Here is the abstract: With its decision in Maryland v. King,...
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From Nevada
Today's Las Vegas Sun reports, "Defense attorney uses mandated legislative study in bid to toss capital charges against four clients," by Bethany Barnes and Jackie Valley. Here's the beginning of this extensive article: Several alleged killers’ lives could be spared...
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UPCOMING CHANGES IN MAINE OUI SUSPENSIONS AND IGNITION INTERLOCK REINSTATEMENT
This past legislative session, the Maine Legislature enacted new provisions regarding OUI suspensions and early reinstatement with an ignition interlock device. The new provisions do not all take effect on the same date. Effective for conduct committed on or after October 9, 2013, the length of license suspension for a 4th or subsequent OUI […]The post UPCOMING CHANGES IN MAINE OUI SUSPENSIONS AND IGNITION INTERLOCK REINSTATEMENT appeared first on Ed Folsom.
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Guardian Commentary
"Capital punishment is murder – especially for the wrongfully accused," is Lindsey Bever's post at the Guardian's comment is free. So far this year, 23 death row inmates have been executed in the US. One was killed by electrocution, the...
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Military Jury Sentences Nadal Hasan to Death in Fort Hood Trial
"Soldier sentenced to death for Fort Hood shooting," is the AP report by Michael Graczyk and Nomaan Merchant. A military court on Wednesday sentenced Maj. Nidal Hasan to death for the 2009 shooting rampage at Fort Hood, giving the Army...
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Illinois Expands Recording of Interrogations
Illinois Gov. Pat Quinn signed a bill Monday that expands current legislation mandating the recording of homicide interrogations to include people suspected in any of eight violent felonies, including aggravated criminal sexual assault, aggravated battery with a gun and armed robbery, reported the Chicago Tribune. Under the new law, which will be implemented over the next three years and completed by June 2016, courts will presume inadmissible any statement a suspect in one of the specified felonies makes unless the interrogation is recorded. While there is some concern from Chicago police about funding the expansion, Mayor Rahn Emanuel and Superintended Garry McCarthy are in favor of the new law. For law enforcement agencies, recording interrogations can prevent disputes about how a suspect was treated and deter officers from using illegal tactics to secure a confession. An unlikely supporter of the bill is Cook County State's Attorney Anita Alvarez who told the Tribune that a recorded interrogation is "an awesome piece of evidence." Cook County was plagued by wrongful convictions in the "Englewood Four" and "Dixmoor Five" cases when false confessions were elicited from young innocent men. Years later, DNA testing proved all nine men innocent and revealed that only one perpetrator had committed each crime. Alvarez was resistant to overturn the convictions. Lake County has also had a problem with false confessions, with three of the four wrongful convictions later overturned by DNA evidence since 2010 having been caused in part by false confessions.
Lake County State's Attorney Mike Nerheim, who took over the office after those cases fell apart, said he supports the new law, though he said he would support an even broader bill that would call for the recording of all interrogations. "I hope that's where we're headed. I think (that's) where we should go," he said.
Read the full article. More on false confessions and mandatory recording of interrogations.
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Texas Stop and Frisk: The New York City Stop and Frisk Law Just Held Unconstitutional – Texas Law Is Not Involved Here
There’s a lot of chatter this month about “stop and frisk laws” and the recent ruling by U.S. District Judge Shira Scheindlin who presides over a federal trial court up in the heart of New York City. In a lengthy (195 pages) decision (read it here), the Manhattan federal judge ruled that it violates the...The post Texas Stop and Frisk: The New York City Stop and Frisk Law Just Held Unconstitutional – Texas Law Is Not Involved Here appeared first on Dallas Justice.
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Criminal Statutes to be Read With Common Sense - Ice and Water Insufficient for Criminal Charges in New Mexico
Law enforcement and prosecutors often try to stretch the definitional boundaries of criminal law statutes. On occasion, these attempts defy reason and logic. That was the case addressed recently by the New Mexico Court of Appeals case of State v. Alverson.
In that case, the issue was whether dry ice and water with the potential for a dry ice bomb constitute an explosive device sufficient to support charges for possession of an explosive or incendiary device.
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Investment Manager Pleads Guilty to Federal Wire Fraud in Utah
Recently a Houston investment manager, Robert Andres, plead guilty to wire fraud in federal court in Salt Lake City. The facts surrounding Mr. Andres’s case are all too familiar in Utah. Allegedly Mr. Andres raised investor funds through his company … Continue reading →
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Kaufman County DPS Racial Profiling Statistics
As part of the my ongoing open records work I requested the racial profiling data for our local DPS office. I received a breakdown of stops, citations, and searches by race/ethnicity for all stops in Kaufman county for the first 6 months of the year. Texas law requires the recording of this data, which anyone can ask for. Check out my open records 101 guide for a how to.
Let's look at the data shall we. 13-2328 (13-06-25) letter to requestor.pdf
In the first 6 months of 2013 there were 7,312 total traffic stops by DPS in Kaufman County. 4,744 of those stops had white drivers, 1,685 had black drivers, and 439 had hispanic drivers. Asian, Indian, and "Other" are the remaining choices. I'm assuming Indian means Native American, but who knows.
So as far as stopping drivers is concerned roughly 65% of the stops are for white drivers, 23% black, and and 6% hispanic.
Now let's look at at citations, you'd expect these numbers to say roughly the same % wise. There were 2,030 citations issued (that's a lot of warnings, which is nice to see). 61% of the citations went to white drivers, 26% to black drivers, and 8% to hispanic drivers. Pretty much the same as the stop data. So far so good.
Now let's look at consent searches. This is where DPS asks "Do you mind if I look in your vehicle?" Which is sort of a trick question. It's designed to get you to say "No, go ahead" before you think about it. The correct is answer is yes, you do mind if some stranger tears through your car. This is America and privacy matters.
Troopers only ask to search if they think you are a criminal. Besides some Troopers will search your body cavity (or cavities) if you aren't careful, so always say no and protect your orifices from rogue DPS Troopers. On to the data, in our 6 month period there were 55 consent searches in total. 55% had white drivers, 43% were black drivers, and 2% hispanic.
Now for probable cause vehicle searches. There are going to be cases where Troopers smell pot (rookie mistake), they call out the drug to check the car (FYI- any drug dog handler can make his/her dog alert on command, it's not hard), or the driver admits he has drugs on him (another rookie mistake). We had 74 of those in 6 months, 47% had white drivers, 43% black,, and 4% hispanic.
Tip for mules, if you are headed East on 20, and you have out state plates and/or are driving a rental car, and you have a "dirty license plate" you are gonna have a bad time in Kaufman County. Trust me on this.
These are small sample sizes for searches, it would behoove someone to get more historical data for a larger sample set and check out those percentages. I hated math all my life until I took statistics in college, if I remembered what I learned I could do some regression analysis. You can draw your own conclusions from the numbers. I am just a messenger. I would like to remind my audience that drug use is nearly the same across all ethnic groups.
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The 50th Anniversary of the March on Washington
By Attorney General Eric Holder This past Saturday, I had the tremendous honor of joining civil rights leaders, Members of Congress, and tens of thousands of ordinary citizens at the Lincoln Memorial to observe the 50th anniversary of the March on Washington. Earlier this afternoon, I took part in President Obama’s historic commemoration of this [...]
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Logan & Wright on Mercenary Criminal Justice
Wayne A. Logan and Ronald F. Wright (Florida State University - College of Law and Wake Forest University - School of Law) have posted Mercenary Criminal Justice (University of Illinois Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:...
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WaPo: Ruth Bader Ginsberg on the offensive
WaPo: Ruth Bader Ginsberg on the offensive by Ruth Marcus
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More Pages to Explore .....
