in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 327 A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome — Part II: An Examination of the Differential Diagnosis Sandeep K. Narang, John David Melville,Christopher...
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The Ethics of Judicial Support
Ethical question: if you think that a judge might be corrupt, but that the corruption can never be detected or prosecuted, do you join in his corruption for the good of your clients? Or do you avoid it for the … Continue reading →
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Do deterrence concerns justify four death sentences in India for gang rape or is it retributive justice?
The question in the title of this post is prompted by this New York Times review of the recent sentencing for four rapist and the broader problems of sexual violence in India. The piece is headlined "Many Doubt Death Sentences...
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Empty Gestures and Photo Ops
Fifty years ago today they bombed the 16th Street Baptist Church in Birmingham, Alabama. Four little girls were killed.I've written about that twice before, though neither time was the bombing (a terrorist act, a hate crime, perpetrated by members of the Ku Klux Klan) and it's immediate aftermath my subject.The first time, it was to talk about Chris McNair, the father of Denise McNair who was killed that morning. He is, by all accounts, a man of uncommon decency. Rather than be embittered by his loss, he became an agent of healing in Birmingham. Two years ago, when I wrote about him, he was 85. And he was beginning a 5-year stretch in the federal pen for corruption. He was hoping for some mercy in the form of a pardon from his Barakness, a man who has revealed himself to be singularly unmerciful and unforgiving.The second time, it was to talk about an empty congressional resolution. Give, posthumously of course, Congressional Gold Medals to the four girls.Because of their "extraordinary sacrifice." Which I suppose it was, since they died. And their murder - a hate crime, an act of terrorism - did in fact jump start Congress into actually passing the Civil Rights Act of 1964 which was one hell of an achievement.It is right that they should be remembered. As a constant prick on our collective conscience. We did this to them. But we did it to countless others, too. We're big on hatred and violence.Because really, they didn't sacrifice. Oh, they gave their lives. But it was unwitting. They were part of a ritual they didn't know existed and weren't aware of while it was happening. And, of course, they had no idea that anything - good or ill - would follow.If there was a sacrifice, it was by the murders, the terrorists. Not a sacrifice to the gods but to hate. Not to end suffering, not to propitiate, but as a promise of more to come. There was, I noted, a disagreement among the surviving members of the girl's families. Sarah Collins Rudolph, the then-12-year-old sister of Addie Mae Collins, didn't want the medal. Rudolph lost an eye and was nearly blinded in another in the bombing. No medal she said. She wanted reparations."I am not going to go get the (medal) until justice has been fulfilled," said Rudolph, now 62, during an interview on Friday at her home in a Birmingham suburb.Same for Fate Morris, the brother of Cynthia Wesley who wants not only reparations but also for his sister to be remembered by her actual name, Cynthia Morris.The McNairs, on the other hand (remember Chris, agent of healing) they liked the resolution."We feel that this honor given by Congress means that our great country recognizes the sacrifices made for freedom in our country," said Lisa McNair, 49, the sister of Denise McNair.Well, as Diane McWhorter says in an essay in today's Times, they got the medals.Sarah Collins Rudolph showed up. Back in May, when Obama signed off on the congressional resolution, she didn't attend the ceremony.I’m letting the world know, my sister didn’t die for freedom. My sister died because they put a bomb in that church and they murdered her.But as it turns out, she did go and collect the medal at the official ceremony last week. Chris McNair was there, too. No pardon for him, but he had qualified for a new Justice Department program offering a few aging souls "compassionate release." Fate Morris was there, too. And so was Diane Braddock, sister of Carole Robertson. Nominally, they were the focus. Rudolph, as the fifth victim, was asked to stand.But the official photographs and the report? There's John Boehner handing out the medal. And next to him Mitch McConnell. And there's Harry Reid and Nancy Peolosi. And Alabama Senator Richard Shelby. The resolution honoring the four heroic girls (heroism of a peculiar sort - not because of who they were or what they did but because they were random victims of hatred and terrorism and racism) passed both houses of Congress unanimously. Why not? It was cheap. A bit of self-congratulatory theater.When the girls were killed, it helped prick the conscience of a nation that still had one and pushed Congress toward enacting the Civil Rights Act. No cheap medal that.Congress could, if it were so inclined, honor the memory of those girls by holding the hearings and making the findings to reinforce the Voting Rights Act that the Supreme Court just did its best to gut. It could actively embrace equal opportunity and recognize that class division is a bad thing. It could advocate for the poor rather than the rich. It could eliminate the war on black people drugs. There is much that it could do. I won't be holding my breath. McWhorter writes,We are understandably drawn to cheaper correctives: posthumous pardons for the Scottsboro Boys in Alabama; plaques at the Birmingham city hall dedicated, in August, to Virgil Ware and Johnny Robinson, two other black children killed by whites on Sept. 15, 1963. If the structural changes achieved by these symbolic gestures are roughly none, their appeal is that they also cost nothing. To wit: the Congressional resolutions conferring the medal last spring passed unanimously.When she talks about what "cost nothing" she really is speaking of dollars and cents, as her piece makes clear. But cash is only part of it (a real part, but only part). What's needed is action rather than "symbolic gestures" by a government that has no interest in more.Fifty years ago today, in an act of hatred and violence and terrorism, 19 sticks of dynamite were planted and set off at the 16th Street Baptist Church. Four girls were killed in the explosion. Some 20 others were injured. The medal is gold. Embossed with a picture of the church on one side and pictures of the girls on the other. Is it petty to think that maybe they could have done more?
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Arlington PD launching steroid testing after latest scandal
Earlier this year, Grits opined that it was, "Time for comprehensive steroid testing at Arlington PD," and now, reported the Fort Worth Star-Telegram ("Arlington police will undergo random drug testing," Sept. 15), the Arlington City Council agrees. The story opened:Arlington Police Department employees will undergo random drug and alcohol testing starting as early as next month after a federal investigation earlier this year involving possible illegal use of steroids by some officers.The Arlington City Council has given initial approval for $60,000 in the upcoming fiscal year, which starts Oct. 1, to expand the department’s drug testing policy to include all 640 sworn police officers. Previously, the department only required testing for new hires, for officers receiving promotions or for employees working in specific areas where they regularly come in contact with drugs, such as the narcotics unit, property room or the jail.In June, the FBI arrested 17-year veteran police officer Thomas S. Kantzos, who they said had accessed law-enforcement-only databases to tip off a dealer from whom he had been buying steroids for himself and other officers for years that he was under police surveillance.A second officer questioned by federal investigators, David Vo, committed suicide the day Kantzos was arrested. A third officer, Craig Hermans, resigned from the department in August after being placed on paid administrative leave in connection with the investigation.Arlington PD has struggled with this issue for years. This was long overdue.
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California Roundup
"Court overturns conviction, death penalty of Hector Ayala," is the AP report, via KGTV-TV. A federal appeals court has overturned the conviction and death penalty of a man for three San Diego murders, saying he was denied a chance to...
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Variety of Drugs Discovered in Ann Arbor Defense Attorney's Apartment
In early August, we wrote about an Ann Arbor defense attorney who had been charged with sexual assault. Now, the former Ann Arbor Downtown Development Authority member will face drug charges as well as details of his criminal case continue to emerge.
A news article at Mlive.com reveals that 29-year-old Nader Nassif had various drugs in his apartment when a search warrant was executed on his South Fourth Avenue apartment following his arrest on July 31 for allegations of sexual assault. According to Washtenaw County Assistant Prosecutor J. Samuel Holtz, investigators found marijuana, cocaine, and ecstasy in Nassif's apartment. Charges will be filed at the defendant's October 7 preliminary exam, Holtz said.
While Nassif is currently free on bond, he is no longer allowed to represent clients at the 15th District Court, where he represented indigent clients as part of Model Cities Legal Services. The news article indicates that authorities found ecstasy and cocaine in a drawer in the defendant's apartment, as well as a pipe containing marijuana residue.
The alleged sexual assault of a woman led up to the drugs being located in the apartment. The woman had come to visit the defendant from out of town, and claimed that the two had gone out drinking after smoking marijuana. She allegedly lost consciousness and woke up to find Nassif sexually assaulting her in his bed. She was injured and treated at an area hospital.
Nassif's preliminary exam was initially set for September 19, however District Court Judge J. Cedric Simpson pushed the exam back to October so that both the prosecution and defense would have time to review evidence.
Michigan drug crime defense lawyers understand that the penalties in cases involving the possession of drugs are harsh, and depend on the type and amount of substance the individual is found to be in possession of. Even when a defendant is charged with possession of less than 50 grams of cocaine, he or she may face fines of up to $25,000 and up to four years in jail.
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Bay City Man Pleads No Contest to Third-Degree CSC, Sentenced to Maximum of One Year in Jail
On Monday September 16, 41-year-old Chad D. Winters of Bay City was sentenced to no more than one year in jail after pleading no contest to a single count of third-degree criminal sexual conduct. In exchange for his plea, prosecutors dismissed one count of third-degree CSC with a person between 13 and 15 years old, according to a news article at Mlive.com.
The alleged victim's mother told the judge in the case that the defendant had "groomed" or brainwashed her daughter during the years she babysat the defendant's children. The girl was approximately 12 years old when she began babysitting Winters' children. When she was 15, the girl's relationship with the defendant led to sexual relations, according to what she told investigators.
The girl's mother told Bay County Circuit Judge Joseph K. Sheeran that she found it really hard that "this man that is 23 years older than my daughter, he was married at the time, has two children . . . had so much time to put effort to try to make my daughter feel special, to groom her, to brainwash her." When given the opportunity to speak, Winters declined.
During the course of the investigation, police recovered pictures Winters drew for the victim, along with poems he wrote, jewelry, a jacket, two cell phones he provided, and other items. The girl's mother said that she became physically ill after reading a script Winters wrote about the first sexual encounter between the defendant and her daughter.
The judge went outside the state sentencing guidelines in sentencing Winters to up to one year in jail for the crime, deviating from the zero to eleven months typically handed down in this situation. The victim's mother said that Winters needs counseling, that he is a sick man, and that her daughter was not getting the justice she deserved.
Michigan sex crime attorneys realize that in cases where the defendant does not plead guilty or no contest, penalties for a conviction of third-degree criminal sexual conduct are more serious and may include up to 15 years in prison. In this case, the defendant was sentenced to up to one year in jail; however, the negative impact to his reputation, career, and perhaps even family relationships will likely far outweigh the criminal penalties.
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Busy, Busy, Busy
Back when I worked for the federal government, there were some employees who were really, really busy. You knew this because their offices were a mess. Their telephones were no longer accepting messages. They had that harried look. And they always talked about how busy they were, especially when you came in to give them [...]
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Police Asking for Help Identifying Streaker, Getaway Driver
Football players from Stillwater and Cretin-Derham Hall were excited about the national exposure they would receive when they learned ESPN would broadcast their Friday night matchup on ESPN2. They ended up receiving more exposure than they hoped for when a male streaker interrupted the game in the second half. According to the police report, at […]The post Police Asking for Help Identifying Streaker, Getaway Driver appeared first on The Appelman Law Firm Law Blog
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Cook County Judge Reverses Herself Dismissing Unlawful Use of a Weapon Charge
A Cook County judge reversed herself on Monday, dismissing weapons charges against a Chicago man who had been stopped for speeding and informed the officer that he was carrying a loaded pistol in his holster. The defendant possessed a valid FOID card. This decision came after the recent Illinois Supreme Court ruling striking down part of the state's gun law as unconstitutional (People v. Aguilar).
Judge Ellen Mandeltort had previously denied the defendant's request to dismiss the unlawful use of a weapon charge last week before the Illinois Supreme Court's ruling on Thursday, which comes in line with the federal court decision earlier this year. In February, the 7th U.S. Circuit Court of Appeals struck down parts of the state law which made carrying a concealed firearm illegal. The defendant's motion to reconsider was granted in light of the ruling and Judge Mandeltort agreed that the charge violated the defendant's Second Amendment rights.
Weapons charges dropped after state high court's ruling, www.chicagotribune.com, September 16, 2013
Ill. Supreme Court strikes down part of gun law, www.chicagotribune.com, September 14, 2013
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Traffic Ticket Do’s And Don’t’s
The light is yellow and you are late for work. The boss is rather unforgiving type, so you blow through the light, and the red and white lights begin flashing. “Pull over”, you hear. Now you are looking a certain traffic ticket, right? Maybe not.
The first thing you should do is pull over, put your hazard lights on, and retrieve your driver’s license and registration. The officer approaches the car, and you roll down your window. Here is where people make their mistake. When Officer XYZ asks you “do you know why I stopped you?”, do not respond with “No, I have no idea.” I have spoken with many police officers over the years (including a family member) and this is a common theme. If you have any chance of an officer excusing the infraction, it is only a possibility if you are honest in this response. Something like this might work—“Yes officer, I am very sorry. The highway was a real mess today, I’m 15 minutes late for work, and my boss is not going to be happy.” You haven’t specifically stated that you went through the light, but, you are also not insulting the officer’s intelligence. Potentially, this will result in a warning to be safer in the future, and no ticket.
If you do get the ticket, and want to plead it down to reduce the points and or fines, and if you intend to do this yourself, request a supporting deposition. (Presently, this is often provided on a large computer print out when the ticket is issued). The supporting deposition is a document prepared by the officer which provides details of the alleged infraction—where the officer was located, what he/she observed, and in the case of speeding infractions, how the officer determined the speed—laser, radar or other means.
If the officer does not prepare a supporting deposition, and you appear for the pre-trial conference, this is a basis for a dismissal of the traffic violation. Obviously, this method only works in the more old fashioned Courts where they still issue tickets which do not contain the supporting deposition. If the officer does not show up for the Court appearance, depending on the particular Court, you may move for a dismissal for “failure to prosecute.” However, in traffic violation bureau Courts in the five boroughs of New York City, this will in all likelihood not be successful (unless the non-appearance by the officer is repeated) and the Court will schedule a new date. The New York City Courts are also notorious for no plea bargaining, and cases proceeding directly to trial with limited cross examination of the police officer who issued the ticket.
If you retain an attorney, in my experience, it is advisable not to request a supporting deposition, as this requires the officer to do more work and reduces the chances of the obtaining the maximum possible reduction for that ticket. With regard to possible pleas for particular violations, clients should be aware that certain tickets, such as speeding in a construction zone, or in a school zone, are much more difficult to get reduced due to judges’ reluctance to countenance what they consider to be reckless behavior. Thus, a client seeking a reduction to a seat belt violation on a speeding in a construction zone infraction (usually at least 6 points, more than halfway to a suspended license at 11 points) has to accept that this may be exceedingly difficult to achieve. Driver’s abstracts can sometimes be quite helpful, in that if the driver has a pristine driving record, this can go a long way to a significant reduction.
In some jurisdictions, there are several judges, and it is sometimes possible to adjourn a case to a date when a more lenient jurist is on the bench, adding to the odds of a better resolution.
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Lamar Odom arrested for DUI in California. Colorado DUI process not dissimilar.
CBS News reports that NBA Star Lamar Odom was recently arrested for DUI in California:
"The former Los Angeles Laker and Clipper was arrested by the California Highway Patrol (CHP) in the early morning hours of Aug. 30 after officers noticed him driving slowly and weaving in and out of lanes."
Driving slowly in the early morning hours combined with weaving is a sure-fire way to get pulled over in California or any other state. Police officers know that people who have been drinking and later decide to drive are often out at night and in the early hours of the morning. Police officers actively target minor traffic violations with an eye towards a possible DUI investigation especially during these prime times and often have designated "DUI cars" to focus on DUI arrests.
Colorado is no exception to this strategy. Colorado officers specifically train to look for these minor traffic infractions. Many jurisdictions in Colorado have designated "DUI officers" and "DUI cars". The State of Colorado, Alcohol and Drug Impaired Driver Enforcement Manual, 2008 [Enforcement Manual], prepared by the Colorado Office of Transportation Safety, indicates that both "weaving" and "slow speed" are cues which "predict a driver is DWI at least 35 percent of the time". The Enforcement Manual goes on to read that "the probability of DWI increases substantially when a driver exhibits more than one of the cues".
According to the New York Daily News, "[t]he police report filed after his arrest described Odom as showing 'objective signs of intoxication and was unable to perform field sobriety tests as explained and demonstrated.'"
In Colorado, roadside sobriety tests are a "search", thus probable cause with exigent circumstances must exist or consent given from the motorist. However, because the maneuvers can't be administered without the cooperation of the driver, consent is the typical focus of the investigating officer.
The National Highway Traffic Safety Administration [NHTSA] indicates that three (3) roadside tests are the most reliable: the Horizontal Gaze Nystagmus (HGN), the One Leg Stand, and the Walk and Turn. NHTSA claims that all three tests combined can predict a driver's BAC of .08 or greater in 91 percent of the cases. However, many officers don't do the roadsides correctly and a properly prepared cross-examination can reveal this.
The Colorado DUI Enforcement Manual adds the alphabet or counting, the finger-to-nose test, and the Rhomberg test to the 3 tests validated by NHTSA.
According to ESPN, "Odom refused all chemical tests and was booked for investigation of driving under the influence of alcohol or drugs at 5:01 a.m., CHP officials said."
Refusals in Colorado are similar to that in California. In Colorado, if a driver refuses a chemical test of his blood, breath, urine, or saliva at the direction of a law enforcement officer in a DUI stop, he can potentially lose his privilege to drive for one (1) year. A driver is entitled to a hearing at the Department of Revenue to contest the refusal. The hearing must be requested within 7 days of the stop. A new law is set to take effect in Colorado in January, 2014 which will permit a driver with a refusal revocation to apply for an ignition interlock restricted license after 2 months of no driving.
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Fatal Three Car Crash in South Carolina; Likely Due to Alcohol
According to the South Carolina Highway Patrol, an investigation of a deadly crash Saturday night is currently underway. The SC Troopers say that the accident involved three vehicles, and most likely alcohol. The serious car accident occurred on U.S. Highway 17-A , around 9:10 p.m. on Clubhouse Road. Apparently, there was an intoxicated driver travelling […]The post Fatal Three Car Crash in South Carolina; Likely Due to Alcohol appeared first on .
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Case Summary: Client who was investigated by the police for a possible crime was cleared of all wrong doing
Recently, a client retained our services to assist with a serious criminal matter in which he was being investigated. The day before he came to our office desperately seeking our help, he had received a telephone call from the Montgomery County Police Department (“MDPD”) and the officer informed him that he was being investigating for […]
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The Importance of SC Car Insurance
In South Carolina, and pretty much every other state, the law requires that in order to get a driver’s license either for the first time, or renewed, then you must certify that they are also insured by an automobile liability policy. You can do so by filling out Form 4477-NC or Form 447-CDL, depending on […]The post The Importance of SC Car Insurance appeared first on .
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The court finds that the original order clearly contemplated and provided for therapeutic visitation only,
These are appeals from an amended order of the Family Court of Columbia County entered 3 December 2009, which, in proceeding No. 1 pursuant to Family Ct. Act article 6, clarified a prior order of custody and from an order...
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Appeals Court Affirms Vacated Conviction
On Monday, the 9th U.S. Circuit Court of Appeals upheld a lower court ruling that freed a California man who was wrongfully convicted in 1999 of being in possession of a concealed knife under California's Three Strikes Law. Daniel Larsen was convicted based largely on eyewitness identification. Two officers testified that they saw Larsen throw a knife under a car located in the parking lot of the Golden Apple Bar in Los Angeles. Because he had prior felony convictions, Larson was sentenced to serve 28 years to life in prison. Larsen spent nearly 14 years in prison before his conviction was reversed by a U. S. District Court judge in 2010 after the California Innocence Project, which began representing Larson in 2002, found witnesses who testified seeing a different man holding the knife. The Associated Press reports that prosecutors argued that Larsen missed a paperwork deadline in his bid for freedom but the Court of Appeals disagreed. Read the full article. Read the 9th U.S. Circuit Court of Appeals Ruling. Read more about Daniel Larsen's case.
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Fishman on Separated Powers of Moral Entrepreneurship
Joseph Fishman (Harvard Law School) has posted Copyright Infringement and the Separated Powers of Moral Entrepreneurship (American Criminal Law Review, Vol. 51, Forthcoming) on SSRN. Here is the abstract: This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s...
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"Brown seeks 3-year delay on easing prison crowding"
The title of this post is the headline of this new article from the Los Angeles Times, which gets started this way: Following through on a deal struck with legislative leaders, Gov. Jerry Brown told federal judges Monday that he...
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