Jay Nixon's PR campaign
Original Article
In the photo to the left, Gov. Jay Nixon takes the podium in front of a civil commitment facility. Well, HB-301 has nothing to do with civil commitment, but it's about removing juveniles from the public registry. Just the usual PR campaign to help himself look "tough" on crime.
08/31/2013
By Jesse Bogan
FARMINGTON - [name withheld] misses the freedom of prison. Back then, he could keep his own stamps, even an electric razor. Back then, he...
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MO - Locked away, but not in prison
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juvenile Delinquent is on probation
In the first case, a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County, which, upon a fact-finding order of the same court, made after...
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Chicago Sexual Assault Crime News – Students Allege Sexual Assault via Hazing by Soccer Team
By now most of you have heard of these Chicago sexual assault charge allegations regarding Maine West High School in Des Plaines, Illinois. According to reports, during a September 2010 campus run for the soccer team, four soccer players have said that they were sexually assaulted during a hazing ritual. As of August 26, 2013, […]
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The issue in this case is whether the judgment of conviction was obtained in violation of the constitutional right of the defendant on the ground of ineffectiveness of counsel.
A Kings Grand Larceny Lawyer said that, The defendant has made a motion pursuant to CPL 440.10(1)(b), (f) and (h) for an order vacating the judgment of conviction on the grounds that the judgment was obtained in violation of his...
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STATE v. LANCASTER MAY CHANGE INTERPRETATION OF OHIO BREATH TESTING LAW
Intoxilyzer 8000 Declared Unreliable In Ohio DUI/OVI Case
This blog has discussed Intoxilyzer 8000 litigation in many previous posts. One of those posts (November 18, 2012) mentioned the case of State v. Lancaster in the Marietta Municipal Court. I was asked to help with that litigation as counsel for Lancaster. Like many of the I-8000 cases throughout Ohio, the Lancaster case involves the reliability of the I-8000. Unlike most of the other cases, however, the Lancaster case includes testimony of expert witnesses for the prosecution and defense. After five days of testimony, the verdict is in, and the breath test is out! The decision has already been appealed and is staged to possibly change the interpretation of breath-testing law in Ohio.
The Intoxilyzer 8000 And Ohio DUI/OVI Cases
In 2009, the Ohio Department of Health (ODH) purchased about 700 Intoxilyzer 8000s for a cost of approximately $6.5 million. The transaction was facilitated by the head of the ODH Bureau of Alcohol and Drug Testing, Dean Ward. Soon thereafter, Ward began working for the I-8000 manufacturer, C.M.I. Use of the machines began in 2010 and gradually increased.
As law enforcement increasingly used the machines, defense attorneys increasingly challenged their reliability. In State v. Gerome, an Athens County judge heard expert testimony and found the I-8000 is prone to errors. The judge concluded that evidence from the I-8000 is admissible, but defendants may challenge the test results based on circumstances that may make the results inaccurate.
Courts throughout Ohio have ruled that I-8000 test results are not admissible, but most of those rulings have been overturned on appeal. For example, in State v. Reid, a Circleville judge excluded evidence from the I-8000 because the prosecution did not demonstrate that the I-8000 is accurate and reliable. Reid was overturned by the Fourth District Court of Appeals, which reasoned that State v. Vega prohibits a general attack on the reliability of breath testing instruments, including the I-8000.
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Fatal Near Glenns Ferry Claims One
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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IDAHO STATE POLICE NEWS RELEASE
District 3 Patrol 700 S. Stratford Dr., Meridian 83642
(208) 846-7550
Fax (208) 846-7520
For Immediate Release: 9/01/2013 3:47 a.m.
Please direct questions to the District Office
On August 31, 2013, at approximately 8:12 p.m., Idaho State Police investigated a fatal crash on Interstate 84 at approximately milepost 125, five miles east of Glenns Ferry, in Elmore County. Jason Richmond, 32, of Midvale, Utah, was standing outside his 2012 Jeep Patriot on the driver's side, assisting a tow truck operator in removing his vehicle from the Interstate. Volodymyr Boyko, 57, of Portland, Oregon, was travelling eastbound in a 2007 Volvo Semi pulling a 2011 Great Dane trailer struck Richmond with his vehicle. Richmond was pronounced deceased at the scene.
Notifications have been made to the next of kin. The crash is still under investigation by the Idaho State Police.
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MO: Asking for consent while warrant check was still pending was unreasonable
Defendant was stopped for a dirty license plate, and she was asked for consent while the warrant check was being run. This was unreasonable because she was not free to go. (And, for what it's worth, the state is responsible for the "thin record.") State v. Stoebe, 2013 Mo. App. LEXIS 1000 (Mo. App. August 27, 2013):
[...] Read more!
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KY: Nervousness, questioning why officers asked about passengers, and refusal to consent doesn't justify frisk
Defendant was stopped for littering and not using a turn signal. When he was stopped, he was nervous and his hands were shaking. One officer asked who was in the car with him, and he asked “Does it matter?” The other officer described defendant as “verbally belligerent” when ordered out of the car, but didn’t hear what was said. He refused consent. A patdown for weapons was unjustified, and the marijuana in defendant’s pocket was suppressed. Frazier v. Commonwealth, 2013 Ky. LEXIS 368 (August 29, 2013).
Defendant had no standing in the place searched. While his DL showed that address, he conceded he lived elsewhere. Mackey v. Commonwealth, 2013 Ky. LEXIS 378 (August 29, 2013).*
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Assessing Texas' legislative session on criminal-justice reform
A Dallas Morning News editorial in yesterday's paper titled "Transforming Texas' criminal justice landscape," opened with this promising assessment:Texas’ law-and-order reputation is well-deserved, deriving from the nation’s busiest death chamber and an incarceration rate that towers over nearly every other nation on the planet.Yet the state is slowly earning recognition on another level — the smart-on-crime level — where both ends of the political spectrum question the wisdom of warehousing low-level offenders and where individual rights are not smothered by the power of the state.This year’s Legislature enacted dozens of new laws, most of which take effect Sunday, that help move Texas from an outlier on criminal justice and further into a position of leadership in some areas.The reasons are many. An emotional driver is Texas’ embarrassment of having freed more innocent prisoners on DNA evidence than any other state. Then there is the emerging liberal-conservative alliance that has made headway in demanding more effective and affordable ways to address crime than keeping jails and prisons stuffed.Grits mentioned earlier that Texas has now accomplished five of six main recommendations from the Timothy Cole Advisory Panel, with recording police interrogations for serious offenses the last, extant item. And Texas rapid de-incarceration among juvenile offenders, highlighted in this DMN graphic, has been something to behold, all accomplished during a period when juvenile crime declined. The paper also praised a new statute limiting Class C tickets written by ISD cops for violating school rules.On the adult side, Texas receives credit nationally from people as diverse as Grover Norquist and Eric Holder for its 2007 probation reforms. But Texas has failed to double-down on that much-ballyhooed strategy. While Texas' 2007 reforms merit praise, there have been three legislative sessions since then in which nothing more has been done on that front. Texas has not reduced adult incarceration levels nearly as boldly as we have on the juvenile side. In the meantime, California has been forced to de-incarcerate under a federal court order, leaving Texas with significantly more people locked up than the Golden State, despite their larger population.The News highlighted a budget item that hasn't received a great deal of attention: "Lawmakers also freed up court fees that had previously been collected for an indigent defense account but were held hostage to balance the state budget. The infusion allowed the Texas Indigent Defense Commission to boost its annual formula allocation to counties for public defenders by $15 million, reaching $35 million this year. Well-known as a tough conservative, Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, lobbied hard for those dollars." The editorial concluded:That doesn’t mean the 2013 Legislature couldn’t have done more to reform criminal justice. It left important items on the table, such as bills to decriminalize possession of trace amounts of illegal drugs and to reclassify possession of small amounts of marijuana as a fine-only misdemeanor. Another would have created a panel to study court-confirmed exonerations to find more ways of improving the justice system. The time may come for those proposals, and this newspaper is hopeful.Texas prisons still hold more people than the populations of Richardson, Colleyville and Addison combined — with 67,000 more in county jails. It’s a relief, at least, that lawmakers seem to realize that enough is indeed enough.That's a pretty good assessment of where we are. The Texas Legislature has largely reached a consensus that incarceration shouldn't be further expanded. The open question is whether they can muster the political will, as they did in the juvenile arena, to roll it back.
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Federal Prosecutor Withheld Favorable Evidence in State Death Penalty Case
In a recent post about prosecutorial misconduct, we opened with this question: Why do some prosecutors engage in misconduct? The Answer: Because they can. Why? Prosecutors have little, if any,… read more →
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Is Texas' 'improper photography' statute unconstitutional?
Somewhere, Mark Bennett must be smiling after the Fourth Court of Appeals declared Texas' "improper photography" law unconstitutional. Now the Court of Criminal Appeals will be asked to resolve differing opinions among Texas appellate courts, reported KSAT out of San Antonio (Aug. 30):The Fourth Court of Appeals declared the Texas Improper Photography Statute unconstitutional on Friday.District attorneys say Section 21.15 of the Penal Code, known as the Improper Photography statute, makes it a state jail felony to visually record or photograph another person without their consent to arouse or gratify the sexual desire of another person."I was very surprised this has proven to be an important statue in what I could call the digital age this is the kind of statue that prevents someone from photographing under a woman’s skirt,” said First Assistant District Criminal Attorney Clifford Herberg Jr.The defendant in the case was arrested for taking pictures of children in their swimsuits at Sea World. He filed a pretrial habeas corpus writ challenging the constitutionality of the statute. Thompson argues innocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment," said the appellate ruling. The court found that the "location identifier" in the statute — "at a location that is not a bathroom or private dressing room — is so broad the statute seems to criminalize conduct in areas where individuals have no expectation of privacy," including public spaces like an amusement park.See the Fourth Court's opinion (pdf).
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ME - Lawyers seek sentencing range in Maine child porn case against former Attorney General James Cameron
James Cameron
Original Article
08/30/2013
By BETTY ADAMS
James Cameron's defense and prosecution say the court must give guidelines before they can argue.
Attorneys continue to wrangle over how a new prison sentence should be calculated for the state's former top drug prosecutor, now convicted of child pornography and of fleeing while on bail, and have asked a judge for aid.
James M. Cameron, 51, formerly of Hallowell, remains behind bars as he awaits a new sentencing hearing in...
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TX - Former West Columbia Police Chief Michael Parker facing sex charges
Michael Parker
Original Article
08/30/2013
WEST COLUMBIA - A big development in case we've been following. You may recall when the former West Columbia police chief disappeared. Now more than a month later, he's turned up again, and he's been indicted on some very serious charges.
As the child sexual assault case against him moves forward, everyone wants to know -- where had he been?
Last August, Michael Parker was running the West Columbia Police Department. We talked to him then...
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NSA T-Shirts for Sale
You may have seen this: The NSA seal is protected by Public Law 86–36, which states that it is not permitted for “…any person to use the initials ‘NSA,’ the words ‘National Security Agency’ and the NSA seal without first … Continue reading →
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Assembling reactions of those most critical of AG Holder's announcement on federal pot policy
In these comments to a post about the recent announcement by Attorney General Eric Holder concerning federal marijuana policy, former federal prosecutor Bill Otis asserted that "what the AG is actually saying is that nothing is changing" and that the...
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UK - Making friends with a paedophile: 'We can't kill him, so we help him not to do it again'
Original Article
Just because someone wears the "child molester" label, that doesn't mean they are a pedophile.
09/01/2013
By EMILY DUGAN
Could it help to cut reoffending rates? Emily Dugan gets unprecedented access to a pioneering project in which the public encourage abusers to change
Whenever Paul Sloane wants to remind himself why he gives up a night a week to hang out with a convicted child sex offender, he thinks back to one phone call. The 55-year-old former engineer from...
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Sunday Link Roundup- Improper Photography, 600 new laws, and Intoxilzyer Junk Science
Improper Photography Law Found Unconstitutional
Grits for Breakfast has a story on a 4th Circuit decision finding our State's "improper photography" statute unconstitutional. The Defendant in the case was arrested for taking picture of people at Sea-World in their swimsuits. This definitely sounds creepy. But photography is an important part of free expression (and protected by the First Amendment).
So you may not be excited about the rights of a creepy Sea World swim suit photographers, but that is the price we pay to keep government away from your First Amendment rights, and the pictures and ideas you want to express. Of course the case now heads to the Court of Criminal Appeals, which doesn't have an excellent track record on individual rights, so don't get too excited about the state of the First Amendment in Texas.
600 new laws go into effect today
It's September 1st, which means over 600 our State's lobbyists most politically palatable ideas have become law. One of the laws we can be proud of is discovery reform in criminal cases. I am pretty tough on TDCAA, and our State government in general, but it was good to see the defense bar and prosecutor lobby on board with this bill. This law should make it harder for crooked lawyers like Ken Anderson to put the innocent in jail by hiding evidence. It will also end the closed file policies that a few rogue DA's offices still employ.
Intoxilzyer Machines Found to be Unreliable Junk Science
Texas uses the Intoxilzyer 5000 for DWI breath tests. These machines are good enough for government work, which means the manufacturer won't even issue a warranty that these machines are accurate breath testing devices. Other States have gone on to use the newer Intoxilyzer 8000, which is supposed to improve on the issues the 5000 has. But guess what, that machine has been found to be unreliable as well.
From the Columbus Dispatch-
After a five-day hearing that included testimony by expert witnesses on both sides that the machine has a "presumption of reliability" because it is officially approved by the Department of Health. However, results from the Intoxilyzer 8000 are "not scientifically reliable and the court, as a gatekeeper against unscientific evidence, must prohibit them from being introduced as evidence in this case."
"Through evidence, we convinced the court that these machines are unreliable," said Tim Huey, a Columbus lawyer involved in the case and the past president of the Ohio Association of Criminal Defense Lawyers who has been fighting the breath-testing machines for years. "Is it going to usher it out the door tomorrow? No."
So Texas doesn't even use the newest version of the unreliable Intoxilyzer, we use the older cheaper model. Yet the State still tricks juries into believing this machine is anything more than an expensive paperweight. Juries want to believe State experts, they've been lied to about DWI by DPS for so long (Drink. Drive. Go To Jail.), that they think their duty is to help the nice DPS intoxilzyer expert get his or her conviction. Remember, just because a government "expert" says something is "science", doesn't make it so.
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Odom's DUI Arrest in Los Angeles Raises Interesting Issues
Lamar Odom was arrested two days ago for DUI. It's already old news so why am I writing about it now? The reason is because his arrest poses some interesting issues that frequently come up in DUI cases. First, misdemeanor DUI is charged under two different vehicle code sections in California: 23152 (a) and 23152 (b). The first is an allegation of driving under the influence of alcohol, drugs or a combination of the two. The second count is an allegation of driving while one's blood alcohol concentration is .08 or above, regardless of impairment and with no allegation of drugs.
When we are arrested for DUI in California the law requires that we submit to a chemical test for alcohol or drugs when requested by law enforcement. If police think we are drunk they ask us to take a breath test or a blood test for alcohol. If they think we are on drugs or both drunk and on drugs they ask us to take a blood test or a urine test to be screened for drugs.
If we refuse to take any tests and are arrested for DUI, several things happen. First, whether or not we are famous, there will be no retained physical evidence of intoxication – there is no blood or urine to test. While this may benefit Mr. Odom in his civil divorce case or in trying to land a new contract in the NBA, it is not usually good for the criminal court proceedings or for dealing with the administrative suspension pending before the Department of Motor Vehicles.
The DMV will be looking to take Odom's driver's license for one year based on the allegation that he refused a chemical test. In court, the prosecutor will be looking to increase his punishment if he is convicted of DUI. A standard first offense DUI will involve probation, a fine, and alcohol school. In this case the prosecutor will seek some term in jail, an enhanced alcohol education program, possibly an ignition interlock device and maybe more.
At this point people often ask if Odom is not better off having refused any tests, after all, if he took a test that could be used against him, right? Right. However, the law is very much in favor of the prosecution on the issue of refusal. The law allows the jury to consider the refusal as "consciousness of guilt". This means that if the jury thinks you refused a test because you knew you were guilty, they can use that against you.
Next, the trial court will normally allow other evidence of impairment at the trial. Here we may consider the driving pattern alleged as weaving and driving too slowly at 3:00 a.m. The jury will likely hear about objective symptoms of intoxication: red and watery eyes, odor of alcoholic beverage, slurred speech, unsteady gait and more. Field sobriety tests often take on a more significant role in refusal cases. How did Odom perform on his tests?
In recent months there have been technical advances in law enforcement in California, including onboard video and audio in CHP cruisers. The video and audio will likely be used if Odom's case ever sees the inside of a trial court.
What does Odom do now?
Mr. Odom should do what any citizen of the state should do. Hire a competent lawyer of his choice. Lamar…if I may call you Lamar? Hire a lawyer who is familiar with DUI law, is familiar with the jurisdiction (court) and finally, hire a lawyer who you personally meet and feel comfortable with. Please call the lawyer within ten days so that they may set a DMV hearing on your behalf and request a stay on your license suspension.
How much should it cost to hire a good DUI lawyer?
I hesitate to say that any lawyer will see Lamar coming. He is hard to miss. However, a first offense DUI with a refusal allegation will likely cost in excess of $5,000 or more to start. This fee is not including trial. Should the case go to trial, the fee for trial is often $1,500 or more per day of trial. Additional expenses for expert witnesses may also come into play.
Lamar, good luck with your case and your contract.
If you or someone you know has been arrested for DUI or has questions about any other traffic or criminal law matter, call me:
Jeffrey Vallens (818) 783-5700 or (888) 764-4340 or email me at: vallenslaw@yahoo.com
For more information, visit my sites:
www.4criminaldefense.com or
www.4drunkdrivingdefense.com
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San Jose Psychiatrist Arrested For and Charged With Prescribing Controlled Substances Without A Legitimate Purpose and Prescribing to an Addict
The Medical Board of California has a Prescription Drug Strike Force. Recently, they conducted an investigation into a San Jose physician after receiving a complaint alleging that this doctor, Duke D. Fisher, a psychiatrist, would prescribe any medication the patient wanted in exchange for cash. The Board conducted multiple undercover operations at his office.In our experience, these undercover operations are usually videotaped. If the undercover operation is not successful for prescription sought (such as Oxycontin), they will send undercover investigators back in and request other controlled substance prescriptions (such as Vicodin, Adderall, Xanax, etc.).Based on the results of the undercover operation, the investigators determined that they had probable cause to believe that Dr. Fisher prescribed controlled substances without a legitimate medical purpose and prescribed controlled substances to an undercover customer who admitted to using heroin and methamphetamines.On August 29, 2013, an arrest warrant was issued by the Santa Clara District Attorney's Office, bail was set at $64,000, and Dr. Fisher was charged with the following counts:(1) prescribing without a legitimate medical purpose in violation of California Health and Safety Code Section 11153;(2) prescribing to an addict in violation of California Health and Safety Code Section 11156; and(3) prescribing to an addict in violation of California Business and Professions Code Section 725.Attorney CommentaryPhysicians who prescribe controlled substances need to assume that everything is being recorded and that their records will be reviewed to determine if there is "legitimate medical purpose." If your personality is to trust patients -- and for physicians trained years ago who were not in the habit of cross-examining patients -- it must be remembered that when "red flags" appear, such as disclosing prior illegal drug use, conservative action must be taken.Physicians remember that you cannot help any patients if you put your license in jeopardy. You need to set boundaries and remember that the only way in which you will not be accused of overprescribing or distributing controlled substances is if your records prove there is legitimate medical purpose and that you are not prescribing to an addict. For patients who have medical issues that require scheduled substances, they have to understand that they need to agree to the terms of your medication management agreement or they cannot be prescribed scheduled substances.At a minimum, physicians who prescribe controlled substances need to do the following:(1) register for the CURES database and run reports on all new patients and regularly on existing patients (some psychiatrists who treat patients with medications are not as careful on these points as are pain management physicians);(2) remember that the CURES system is not perfect and do not rely solely on it;(3) record all drugs dispensed and prescribed in the patient chart and keep copies of the prescriptions in the patient's chart;(4) conduct the appropriate physical exam and obtain records from prior physicians and speak to those physicians;(5) have pain management or medication agreements with patients that are followed and document when the agreement is breached;(6) have a system in place that addresses the patients' medical issues and refer to specialists as needed; and(7) remember that spending a weekend to address your practice and compliance is well worth the effort.Once your practice has been open for some time, it is critical to revisit policies and procedures once a year just to protect yourself and your practice.Posted by Tracy GreenGreen and Associates, Attorneys at Law801 S. Figueroa Street, 12th FloorLos Angeles, California 90017tgreen@greenassoc.com213-233-2260
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Texas Western, Southern Districts lead way in prosecuting immigration violators
While routine immigration violations are generally a civil offense, there is a category of federal prosecutions - for "illegal reentry" - that are explicitly criminal charges. The US Sentencing Commission prepared this fact sheet (pdf) summarizing data regarding prosecution of illegal reentry, the main criminal charge filed against repeat offenders. Texas' Western (3,664) and Southern (3,387) Districts had the second and third most cases among all US Attorney divisions behind Arizona (3,873) in 2012. The fourth ranked District, New Mexico, prosecuted fewer than 2,000 cases. Overall, the charges do not appear to be targeted at serious criminal offenders. "Fewer illegal reentry offenders were also assigned to the highest Criminal History Category (from 9.4% in fiscal year 2008 to 5.4% in fiscal year 2012)."Via the US Sentencing Commission and Doug Berman.
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