Yesterday, we were discussing the story of a convicted gentleman who, while charged with the possession and dissemination of child pornography, was really suspected to be about to do far worse.
While admittedly not kidnapping, killing and eating anybody, East Boston’s 39-year-old Jose Avila (hereinafter, the “Defendant”)has been charged with committing a Massachusetts indecent assault and battery already.
I think it is worth comparing the two cases.
The Defendant, you should know, “adamantly denies” the charges he now faces. He stands accused of molesting a 9-year-old girl.
In front of several witnesses.
“This incident is extremely serious,” the prosecutor argued in court, asking for bail to be set at $100,000 bail. “There is concern for the safety of children in the neighborhood because this is a random attack.”
According to the Commonwealth, the 9-year-old complainant was playing with friends on the front steps of a Faywood Avenue house when she dropped her doll’s brush which was then blown onto the street. The girl chased after the brush, saw a car coming and waited for it to pass. Prosecutors say that the Defendant got out of the car and placed one hand on the girl’s genitals, another on her buttocks and said “coochie coochie coo,” leaving the girl “visibly upset and crying.”
The incident was allegedly witnessed by several of the victim’s friends, ages 5 to 7. An adult male claims to have also seen the incident. He is said to have leaned out a third-floor window, yelled out and then ran down to the street, but the man had already driven away.
Well, at least that is what early reports about the police report stated.
Since then, the man, 45-year-old Miguel Chavez, has given a statement of his own to the press. He now says that, upon seeing the girl, his neighbor, being “fondled” outside, he actually used a pellet gun to scare off the offender…presumably the Defendant.
“I was scared he was going to take her and take my daughter,” he explained. He described seeing a man randomly grab the little girl on a street in Orient Heights. “I said ‘Drop her or I’ll shoot.’ ... If it had been a real gun I would have shot him. Wouldn’t you?” Chavez said.
He went on to say that the police brought back a photo and he identified the suspect from a picture.
The showing of the photograph will no doubt be important evidence on the issue of identification. The Defendant’s attorney has already raised other questions as to the identity of the assailant. For example, witnesses apparently originally reported that the suspect was first described as a white male. The Defendant, however, is Hispanic. Further, witnesses first said that the suspect was someone who had been in the area before, but no one knew his name.
Of course, since they had the Defendant’s photograph on file somewhere, it would seem that law enforcement knew who they already thought might be the culprit.
This brings up other questions of identification and bias.
The defense asked the court to release the Defendant on his own recognizance, arguing that, among other things, he is a homeowner and has a family — including a 5-year-old daughter and a wife who is a schoolteacher.
As any regular reader of this blog knows, the fact that the Defendant now faced this type of crime meant that The Department of Children and Families became involved with the Defendant’s family, although there had been no allegation about the Defendant having assaulted his daughter. DCF is currently following up on an abuse and neglect complaint that was filed against the Defendant in response to the criminal charges now pending.
The court held the Defendant on $30,000 bail. Should he make bail, he will be placed under 24-hour house arrest, must wear a GPS tracking device and must stay away from children younger than 18, except for his daughter.
The Defendant’s next court date is October 16th. It is set for a probable cause hearing. Such hearings rarely take place anymore. The translation to reality is that the district attorney’s office is deciding whether to indict the matter and move the case from East Boston District Court to Superior Court.
Given the type of case this is, as well as the press interest it has already received, this long-time Boston criminal lawyer anticipates an indictment.
Attorney Sam’s Take On Massachusetts Sex Crimes Of Mind And Matter
At the onset, let’s be clear. The allegations facing the defendant about which we “spoke” yesterday and the Defendant are extremely serious. There is no doubt about that. However, I believe that comparing the two cases may well shed light on some important criminal justice realities about which you should be aware.
Additionally, there are already some issues which already cast a shadow of doubt on the Commonwealth’s case against the Defendant. Rather than leaving you a posting long enough to take you a day to read, let’s pick up at this point tomorrow and discuss these things.
To read the original stories upon which this blog is based, please go to http://bostonherald.com/news_opinion/local_coverage/2013/09/da_east_boston_man_groped_9_year_old and http://bostonherald.com/news_opinion/local_coverage/2013/09/dad_outraged_by_assault_on_neighbor_s_daughter
EAST BOSTON MAN IS CHARGED WITH GROPING A 9-YEAR-OLD CHILD
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"Victims Push Laws to End Online Revenge Posts"
From the New York Times: Revenge porn sites feature explicit photos posted by ex-boyfriends, ex-husbands and ex-lovers, often accompanied by disparaging descriptions and identifying details, like where the women live and work, as well as links to their Facebook pages....
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Injury Crash on SH25 at milepost 4, near Jerome blocking both lanes
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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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: 09/24/2013 9:23 pm
Please direct questions to the District Office
The Idaho State Police is currently investigating a two vehicle injury crash on SH25 at milepost 4, near Jerome.
Both lanes of travel are blocked at this time. More information will be released when it is obtained.
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Can I get a DUI in Pennsylvania for taking Prescription Meds and Driving? A Synopsis and Criminal Defense Lawyer's Opinion.
In the last year I have noticed an influx of cases involving prescription medications. I have also noticed that more and more of my clients are being charged with DUI for taking prescription medication under the direction of a doctor. My cases have involved clients taking many types of legally prescribed prescription drugs such as Oxycodone, Fentanyl, Suboxone, Dilaudid, Nuerontin and various antidepressants. Most of my say emphatically "how can I get a DUI if I have a prescription?" The short answer to that question is that it does not matter if you have a prescription. You can still be charged with a DUI in PA if you are taking a legally prescribed drug. Pennsylvania law states that you cannot drive or operate a vehicle if you are under the influence of a drug or combination of drugs which impairs your ability to drive a vehicle. This statute can be found in the Pennsylvania Motor vehicle Code at 75 Pa.C.S. §3802(d)(2). The definition of a drug is expansive in Pennsylvania. Under PA law "a drug" is defined as any substance that affects the function of the human body." Therefore, you could be charged with DUI for driving and taking any medication that impairs your faculties. Theoretically, you could be charged for taking over-the-counter medications that cause drowsiness.
In order for prosecution to convict you of a DUI for taking legally prescribed drugs, it must show that the drug(s) you were taking impaired your ability to drive. The prosecution will try to prove to the judge or jury that you were impaired in a number of ways. The following are examples of the types of evidence the Commonwealth may produce at trial or a preliminary hearing to show your driving was impaired because of the drugs: a lab report showing the drug in your blood; expert testimony that the drug or combination of drugs impairs your ability to drive, your pill bottle indicating the medication causes drowsiness or instructing you not to drive or to use caution while operating machinery; field observations of the police officer such as slurred speech, dilated pupils; fumbling for license or registration, unsteady balance; evidence of erratic driving or an accident.
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Rosenberg on Acts and Omissions
Roni M. Rosenberg (Carmel Academic Center - Law School) has posted Two Models of 'Absence of Movement' in Criminal Jurisprudence (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract: The distinction between act and omission is...
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Such a reaction is an insufficient basis upon which to found a stop and seizure.
Thus, in one case, which was factually quite similar to this case, the officer saw "a heavy object slide against the material in the right pocket" of defendant's long outer coat. The officer tapped the pocket and "on feeling a hard object, reached into the pocket and removed a .22 calibre six-inch revolver with six rounds of live ammunition." Suppression was directed because defendant "had done nothing wrong" before the officer reached into defendant's pocket and because the officer could not tell "what the heavy object appeared to be by looking at the pocket". Nothing in "defendant's standing behind the pimp, in his nervousness or his slouched stature, or the fact that he had his hands in his coat pockets and removed them very slowly when requested to do so, or that a heavy object slid against the material of defendant's pocket can be said to be reasonably referable to or indicative of the presence of a revolver."
The officer here initially testified that all he wanted was a reasonable answer to his query about the bulky and weighty object in defendant's pocket, and defendant then would have been free to go "on his way without my ever touching his pocket." He later added that to satisfy his own curiosity he probably still would have touched the pocket if defendant had not shown him its contents. Such a touch would have been an unwarranted intrusion. The fact that defendant's “‘pocket was hanging', 'like something heavy was in it' " was held insufficient as a basis for a frisk or search for a revolver in. On the facts here, it is plain there was no lawful predicate for the search.
With no inkling that criminal activity was afoot, there was no articulable reason for the police even to have questioned this defendant about the contents of his pockets. Accordingly, defendant's response of "nothing" was equivalent to his right not to respond at all. Nothing in defendant's response "made permissible any greater level of intrusion". It certainly did not warrant a pat-down of defendant's pocket. Whatever "fear for their safety" the police may have felt as an immediate predicate for their subsequent search for a gun was solely a result of an unwarranted intrusion in the first place.
Each of the observed actions or appearances of the defendant in this case, viewed either separately or together, was plainly susceptible to interpretation as innocent behavior. Furthermore, the combining of such otherwise innocuous actions and behavior in a setting described as a "high gun crime area" does not expand the powers of the police to the detriment of those individuals who happen to live or work in, or are passing peaceably through, such a neighborhood.
As the Court of Appeals stated, "Before a person may be stopped in a public place a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50). Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand." Nor does the fact that defendant falsely answered "nothing" in response to the officer's inquiry as to the contents of his pocket justify the search. Absent a showing of the existence of one of a few specifically established and well-delineated exceptions" to the constitutional proscription on warrantless searches, such action, undertaken without probable cause, will not be upheld. None of these "specifically established and well-delineated exceptions" applies in this case.
It may very well be possible that a random search of all passersby on the street in this particular neighborhood at this time of night would have yielded a lot of contraband. But the individual liberties in our Constitution are not based upon statistical probabilities. The Constitutional protections against unwarranted intrusion by an agent of the State are not to be relaxed when an individual goes for a walk, or engages in otherwise innocent behavior, in a public area statistically known for a high incidence of crime. The Fourth Amendment has never been so amended.
The testifying officer indicated that this was a "medium to high" gun crime area. There was a good deal of testimony and questioning as to this issue. And it was relied upon in the suppression justice's decision. Thus, once again there emerges the danger of an elastic exception to the Fourth Amendment based upon a court's acceptance of a policeman's personal estimate of the level of crime in the neighborhood. The officer named as low crime areas in the City "Staten Island, Queens, parts of Manhattan."
It cannot be doubted that certain locales in the City are appropriately designated high crime areas, based upon the statistical analyses of the law enforcement authority. The validity of the Police Department's use of such designations in the allocation of its limited resources is hardly open to question. However, the designation of a particular area as one with a higher than average incidence of crime does not give the police the right to go around that neighborhood touching the pockets of everyone on the street who appears a little out of the ordinary, simply because it may be obvious that the individual happens to be carrying an unidentified object in his pocket. Our respect for those brave policemen whose duty includes operating in areas known for higher than average criminal activity cannot be permitted to override the Constitutional mandate that the detention of an individual on a public way, and his subsequent search for concealed contraband, must be based on more than "mere whim, caprice, or idle curiosity". In essence what occurred was that in the face of normal, innocuous behavior the officer's response was premised upon a "hunch" or "gut reaction". Such a reaction is an insufficient basis upon which to found a stop and seizure.
As noted, the police action and the suppression justice's determination seem to be premised, at least in part, on the fact that the incident occurred in a "medium to high" crime area. There is no warrant for concluding that the fact that the events occurred in such an area justifies a greater level of intrusion than would be warranted by the same behavior in other areas. Nor, is there any warrant for premising the level of police activity on the fact that the defendant was wearing a "wrinkled up and dirty" and "ragged and old" trench coat. Although the incident occurred in an area not notable for affluence, this should not be the measure of the level of police intrusion. Nor does the fact that the search yielded a gun justify the stop, search and seizure and the arrest. A search illegal at its inception cannot be validated by what it produces.
Accordingly, the court held that the judgment of Supreme Court, New York County, rendered January 27, 1984, convicting defendant on his plea of guilty to criminal possession of a weapon in the third degree, is reversed on the law and the facts, and the motion to suppress physical evidence is granted and the indictment dismissed. Judgment, Supreme Court, New York County rendered on January 27, 1984, reversed, on the law, and the facts, and the motion to suppress physical evidence is granted, and the matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of a copy of this Court's order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.
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Post-Mortem
I really didn't want to write about Harry Mitts again. I thought I'd said all I had to say when I posted last night.Mitts murdered John Bryant and Police Sergeant Dennis Glivar, shot and injured but didn't kill a couple of other cops. Glivar's mother and sister forgave him quickly, shortly after the killings. They said god wanted them to. And they let him know. Still they wanted him to die, said god wanted that, too. And they planned to watch. Mitts himself was eager to be killed so he could get going toward what he believed would be his eternal reward with god since he repented and all.Really, I figured I was done.Then I read what Debbie Glivar, Sergeant Glivar's wife, said this morning. She was there, at Lucasville, in the death house at the Southern Ohio Correctional Facility, to witness Mitts being killed. She wept, the AP reports, as he said his last words. He asked forgiveness. And he offered an apology."I had no business doing what I did,” he said.But then, afterwards, stepping up to the microphones, she declared her commitment.I won’t forgive him, ever.Which is, of course, understandable. Nineteen years ago, in an act of surpassing horror, Harry Mitts took from her what can never be returned and for which there can be no adequate compensation, the person we can safely assume to have been the love of her life. Why should she forgive? Why shouldn't she wallow in that hatred? Which of us can fairly say with certainty that we would not. I can't.Nor could John Bryant's sister, Johnnal, though she thought maybe, some day.“No, I don’t forgive him,” she said as she fought back tears. “Maybe one day I will, but right now I don’t.”And yet, and here's the thing, the lesson we learn from those who manage, truly, to do the unthinkable, to fully forgive. Sometimes even to embrace the ones who ripped apart their lives.When they give up the hatred, when they give up the anger, that's when it stops being about the killer. That's when they can fully open themselves up to the love that they had. That's when they are able to achieve . . . not closure. There's never closure. But peace. That's when they can move on and resume their own lives. It's their voices I celebrate and honor in these posts because they're the engines of the grace and mercy I keep writing about. Our "better angels" in Lincoln's words.For them, in a way, we should rejoice. For those who wallow in the hatred and anger, who insist upon it, for them we might well mourn. Not mourn with them, for them.
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The Meaning of Life Settlements: Are They Securities Or Not?
“Life settlements” are financial transactions in which the original owner of a life insurance policy sells it to a third party for an up front, lump sum payment. The amount paid for the policy is less than the death benefit Read More
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Carrying a Gun Into a Church or Home
Yesterday we went over some laws concerning carrying a gun in Utah. Today we’re going to specifically address what is legal—and what isn’t—when you have a concealed weapons permit and want to carry a gun into a church or private residence. Guns at Home and in Church Before a person with a concealed weapons permit […]
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"Lethal Injection Secrecy Post-Baze"
The title of this post is the title of this new and timely piece available via SSRN authored by Deborah Denno. Here is the abstract: This article assesses the impact of the 2008 Supreme Court case Baze v. Rees on...
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The 4th Circuit Expands Warrantless Searches
This blog post was written by attorney Rosana Escobar Brown. While Ms. Brown is not an attorney with Price Benowitz LLP, we are very happy to have her as a regular contributor to our criminal law blogs. Any opinions expressed herein are solely those of the writer.
Your trash is safe nowhere.
In a ruling that greatly alters traditional notions of privacy around or near the home, the Fourth Circuit ruled in a two to one decision that police officers may travel onto a person's patio to conduct a warrantless search, and that they can search any trash left out, even if it is within the confines of a person's yard.
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"Lengthy discussion of "Why Scandinavian Prisons Are Superior""
Douglas Berman has this post at Sentencing Law & Policy, excerpting an article from The Atlantic.
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Opening Statements in Insider Trading Trial of SAC’s Martoma Set for January 13, 2014
Counsel for Mathew Martoma won a bit more time to prepare their client’s defense against criminal insider trading charges in the Southern District of New York. Yesterday, Judge Paul Gardephe postponed jury selection from November 4, 2013 until January 6, 2014 because Martoma’s lawyer, Richard Strassberg, is tied up with another trial beginning this week before Judge Jed Rakoff. Strassberg is representing Bank of America’s Countrywide unit in civil suit where the government has alleged that Countrywide defrauded Fannie Mae and Freddie Mac in connection with home loans. Today, Judge Gardephe granted Strassberg an extra week to prepare his opening argument, which will now take...
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Court Enters Pretrial Order in Mark Cuban Insider Trading Case Set for September 30
In anticipation of the SEC’s insider trading trial against Mark Cuban, which is set to begin on Monday, September 30, Judge Sidney Fitzwater of the Northern District of Texas entered a revised pretrial order today. The order sets forth the parties’ factual and legal contentions and provides a preview of the key issues to be tried. The SEC contends that Cuban violated the federal securities law when he sold 600,000 shares of Mamma.com stock while in possession of material, nonpublic information that he agreed to keep confidential and on which he agreed not to trade. The alleged material, nonpublic information was Cuban’s knowledge of...
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OH - State v. Dawson
Original Article
Diigo Post Excerpt:
The facts in the case before us are not in dispute. In March 2002, a complaint was filed in Montgomery County Juvenile Court (J.C. No. A XXXX-XXXX 02), alleging that Dawson had committed a sexually-oriented offense at the age of 14. The juvenile court found Dawson to be a delinquent child in May 2002, following his admission to having committed gross sexual imposition in violation of R.C. 2907.05, which would have been a felony of the third degree if...
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TX - Downey v. State
Original Article
Diigo Post Excerpt:
A grand jury indicted appellant with committing indecency with a child, alleging that he had touched the breast of a child while intending to arouse and gratify his sexual desire. Appellant pled guilty to that offense while receiving admonishments about the effects of doing so, waiving constitutional and statutory rights, and judicially confessing. The trial court deferred its adjudication of appellant's guilt and placed him on community supervision for...
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IN - IN RE TERMINATION OF PARENT-CHILD RELATIONSHIP
Original Article
Diigo Post Excerpt:
Mother and Father have two children: F.L. born in 1999 and B.L. born in 2002. During their marriage, Mother and Father engaged in sexual activity with other individuals in their home. In fact, Father would drive Mother to meet men she met on-line for the purpose of engaging in sexual activity. Mother was sometimes paid for the sexual encounters. The children were often present in the family's home during these encounters and would also travel with Father...
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TX - Phillips v. State
Original Article
Diigo Post Excerpt:
In this case, appellant, William Ray Phillips II, was charged with failing to register as a sex offender. See TEX. CODE CRIM. PROC. ANN. art. § 62.102 (West 2006). Prior to trial, appellant was determined to be indigent and attorney Seth Sutton was appointed to represent appellant. However, a few days later, appellant signed a waiver of his right to counsel in the case pending against him. The trial court allowed appellant to represent himself; however,...
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OH - State v. Noles
Original Article
Diigo Post Excerpt:
{¶1} Billie Noles appeals from a judgment of conviction and sentence following a jury verdict finding him guilty on four counts of rape in violation of R.C. 2907.02(A)(1) (b) and (B). For the following reasons, we affirm the judgment of the Lucas County Court of Common Pleas. {¶2} When G.B. was in the third grade she watched a sexual abuse video at school. After the video, G.B. approached her school counselor and reported that she had been sexually...
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WA - IN RE DETENTION OF REYES
Original Article
Diigo Post Excerpt:
While appellant Rolando Reyes was imprisoned for residential burglary, the Attorney General petitioned in 2004 to commit Mr. Reyes to the Special Commitment Center (SCC) to await trial as a sexually violent predator (SVP). The petition was dropped after he was convicted of twice committing custodial assault with sexual motivation while at the SCC. The petition was refiled in 2008 when his 36-month sentence for the two custodial assault convictions was...
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