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CA - People v. BACHA

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Original Article Diigo Post Excerpt: We need not set forth a detailed statement of facts to resolve appellant's sentencing claim because, as he admits, it involves a "pure question of law" and is "not fact-based." Suffice it to say, the record shows appellant repeatedly sexually molested his girlfriend's daughter when she was 10 and 11 years old. He was convicted of six counts of lewd conduct with a child and one count of attempting to commit a lewd act on a child. (Pen. Code, §§ 288, subd.... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

PA - Commonwealth v. REMENTER

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Original Article Diigo Post Excerpt: The chilling facts of this child rape case are clear from the record. . . . [Appellant], then 23, met H.D. when H.D. was just 8 years old and they were both students at a local karate school. [Appellant] immediately became obsessed with the 8-year-old H.D., developing the deranged delusion that "[t]he day we met I felt a force so strong between us that it felt like destiny was pushing us together." [Appellant] became H.D.'s karate instructor when she was... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

CA - People v. Zapata

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Original Article Diigo Post Excerpt: In March 2005, defendant was driving his vehicle when he was stopped by police officer Ramiro Vergara for not wearing a seat belt and failing to signal before turning. A DMV check revealed the vehicle was registered to Juan Zapata, defendant's brother, and that the registration was expired. Defendant identified himself as Juan Zapata, with a birth date of December 18, 1984, and told Vergara the vehicle belonged to his girlfriend. A records check showed... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

IL - IN RE COMMITMENT OF BUTLER

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Original Article Diigo Post Excerpt: On June 9, 2008, the State filed a petition pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 to 99 (West 2010)) seeking to have respondent, Johnny Butler, adjudicated a sexually violent person (SVP) and committed to the care and custody of the Department of Human Services (DHS). The petition alleged that respondent had previously been convicted of three separate sexually violent offenses. Specifically, respondent was... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

//blawgsearch75.rssing.com/chan-6519914/article4085-live.html

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United States v. King, No. 12-30235 (11-15-13)(Nguyen with Thomas and Dearie, Sr. D.J. NYE).  The 9th affirms convictions of a defendant for dealing in firearms.  The problem, for the defendant, was that he was not a federal licensed firearms dealer.  He worked with a friend who was, but he went rogue and dealt on his own.  The 9th held that the defendant does not get a jury instruction requiring the gov't to prove beyond a reasonable doubt that he was not an authorized agent of the federal firearms licensee.  The facts didn't support it and the shifting to the gov't was not warranted.  The 9th under plain error held there was sufficient evidence that the defendant did deal with firearms.

Be the Student, or Be the Lesson

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From James in the hinterlands (“Prosecutor and Defense Attorney Since 1968″), regarding Robb Fickman’s guest post1 on Ken Anderson: Brilliant, of course, but I’m connecting for a separate reason.  I have recently started a blog and would like to cross … Continue reading →

At R--194 there appears the testimony of witness

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In this Criminal case, the Court is unanimous in its determination that the doctrine of res ipsa loquitur is applicable to this case and, therefore, the court discussed only the arguments advanced in the dissent. A New York Criminal lawyer...

Quagmire upon Quagmire - And Finally the Real Reason

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I thought I was done with this piece of news for a while, but then along came Wesley J. Smith and Art Caplan.The news at hand is about Ron Phillips wanting to donate his organs, DRC saying Fie!and Governor Kasich sayingHey, maybe we can save some lives here.As I said, I thought I was done - at least until they did or did not harvest and did or did not kill.  Thing is, I'd forgotten about the internet.So a few bits of background before we get to Messers Smith and Caplan and the point of this post.I don't know Ron Phillips.  I've never represented him.  I've never met him, never spoken to him on the phone or received a letter from him.  I hear, from time to time, from friends and relatives of those on the row.  Never a word about Phillips.  I do know his lawyers, but I've never spoken to them about his crimes.  Nor have I spoken with them about his desire to give away parts of his body.Phillips brutally raped and murdered Sheila Marie Evans, a three-year-old child.  (I take it that he's factually guilty.) To describe what he did as reprehensible is to sugar-coat it.  I don't think he should be executed.  I don't think anyone should be executed.  There are moral, philosophical, practical, and political reasons.  We shouldn't do it to him, and we shouldn't do it for us.  That's not because I offer any excuse.  There is none.OK.  Here's the deal.  Phillips was scheduled to be killed yesterday.  The Governor and the courts both declined to intervene in his execution.  Maybe there were more legal avenues to pursue, but the reality was that they would almost surely fail. Nothing's certain in this world except that sooner or later we will all leave it, but that Phillips' execution was imminent was pretty clear.Boswell quoted Dr. Johnson. Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.And so it is that Ron Phillips said that he wanted to donate his kidney to his mother (who had kidney disease) and his heart to his sister (who had a heart condition).  And while they were at it, he said, take the rest of me for whoever. He wasn't asking for a reprieve.  He figured they'd take the parts after they killed him.Was it a cynical ploy for some last minute sympathy?  Did he hope it would change the landscape and get him a stay, or even a life sentence (life sans heart would undoubtedly be measured in microseconds, but still)?  Did he actually think, like dying Edmund in King Lear,                       some good I mean to do, Despite of mine own nature.Did he hope that would somehow atone?  That the family of Sheila Marie Evans would now believe him a good man?  That the gates of heaven would open and he'd be welcomed with open arms and invited to sit on the right hand?Damned if I know. What I do know is that there are concerns, legitimate moral concerns, with taking organs from the condemned.  Might jurors be more inclined to sentence folks to die if they thought they were also including organ donation in the sentence? Can the offer of donation ever be fully voluntary when there's at least some chance, however small, that it might influence a clemency decision - or even lead to a reprieve?  Are doctors somehow complicit in the execution if they take organs - either before or after?And there are practical concerns involving logistics, the quality of the prospectively donated organs, possibly changing execution methodology, the willingness of some who might need organs to accept them, and, again, medical ethics. I said the other day that all of those can be overcome or resolved with sufficient will.  Vicki Werneke, a lawyer who does late-stage capital work in Ohio, commented on my last post.I predict that ODRC will now have to develop procedures by which the guys on the row can make such requests, etc.Could be. Anyway, that's where we were when the ethicists weighed in. They said all the things I'd mentioned.Jurors might see it as a "perverse incentive" to kill, said Dr. Brooke Edwards of the Mayo Clinic Transplant Center.It's almost impossible to see a donation as free from "coercion or consideration of personal gain," said Anne Paschke of the United Network for Organ Sharing.Wesley J. Smith, purportedly a "bioethics attorney" in Columbus, Ohio (though not listed as an attorney by the Ohio Supreme Court) and a "special consultant" to the Center for Bioethics and Culture (whatever and wherever that might be), and who does indeed write the Human Exceptionalism blog for the National Review on line, wroteHere’s the problem: The requested donation must be judged in the context in which it was made. This is not a truly freely chosen action. But for being condemned to die, there is no indication that he would have been willing to donate. If we are to have a death penalty–and I don’t want to get into that question here–we should not allow execution to be tied to a utilitarian benefit for society. And that is precisely what is happening here.And then there was Art Caplan.  He's the founding head of the Division of Bioethics at NYU's Langone Medical Center.  He's a serious guy.  At the Bill of Health Blog published by the Petrie-Flom Center of Harvard Law School (can't get much more serious than that), he said,Are we ever capable of laying a stupid idea to rest in America? Apparently not. The latest tempest in the ever-resurrecting world of solutions to the shortage of organs is donation by executed prisoners. The Governor of Ohio held up a plan to execute a man on death row when he requested that his organs be donated to his mother and sister each of whom have serious health problems.According to the AP,“Ohio Governor John Kasich on Wednesday stayed the execution of convicted killer Ronald Phillips to assess whether Phillips’s non-vital organs or tissues can be donated to his mother or possibly others. Phillips, 40, was scheduled to be executed Thursday for the 1993 murder of 3-year-old Sheila Marie Evans.“I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Kasich said in a statement.”The Governor need not have bothered. What child rapist and murderer Ron Phillips had in mind was donating his heart and kidneys to his family. He has shown no interest in helping anyone else nor did he ever mention tissue donation.That last part is, apparently, not entirely true.  His letter to the Governor does, according to press reports, also invite the taking of other organs.  (I doubt that he mentioned tissue, but I don't actually know.)Notice that the focus, despite the language Smith and Caplan use, has shifted from whether the donation offer is truly voluntary to underlying issues that have nothing to do with that moral/ethical issue. Mustn't let executions offer a "utilitarian benefit" says Smith who is regularly concerned in his blog with avoiding things that might actually encourage organ donation.  And Caplan would reject the offer because Phillips only wants to help his mother and sister rather than the larger society.  Yet even that's a sham.  Here's what Caplan told Julie Carr Smyth and Amanda Lee Myers of AP."It's unethical because this guy who's being executed raped and killed a 3-year-old. When you donate your organs, there's a kind of redemption," Caplan said. "Punishment and organ donation don't go well together. I don't think the kinds of people we're executing we want to make in any way heroic." Which is, of course, the essence of the matter, the real reason.  People who do what Phillips did, we can't allow them to be redeemed.  We must keep them monsters or we can't kill them.Prisons, they were called penitentiaries for a reason.  They were to be places of penitence.  We wanted redemption.  We hoped that last words would be acknowledgements of guilt, exhortations to the gathered throng (including large numbers of pickpockets and purse snatchers, who apparently weren't deterred) to be better people.  We hoped to rehabilitate.Raymond Chandler, who wrote the Phillip Marlowe detective novels, famously said,In everything that can be called art there is a quality of redemption.As in art, so in life.  Or so we might hope. But redemption isn't compatible with dehumanization, with monstrosity.  The Golem must be destroyed - which is a hell of a lot harder if the Golem turns out to be just another, deeply flawed guy.Should Ron Phillips be allowed to donate his organs?  If he's serious.  If he wants to do it.  Sure.And if it leads us to think twice about why we want to kill someone who'd do that - even as he faces his last days?  Fuck.  That's all the more reason to let him.

SWEDEN Is Closing Prisons Due to Lack of People to Put In Them

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Original Article 11/12/2013 As the prison population spirals out of control in the United States, Sweden finds itself with an interesting and opposite predicament: it has too many prisons and not enough prisoners. For this reason, the Scandinavian country recently decided to shutter four prisons and a remand center. The issue isn't lack of crime in Sweden—in fact, the crime rate has actually increased slightly there—but rather a strong emphasis on rehabilitating criminals, rather than... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

IL - Woman (Kimberly M. Binnion) charged in connection with false rape report

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Original Article 11/15/2013 TUSCOLA (JG-TC) - A Mattoon woman has been charged with disorderly conduct for reportedly making a false claim to police that she was raped in a rural Douglas County location last month. Kimberly M. Binnion was served with a summons earlier this week and is scheduled for a hearing on Monday, according to Douglas County court records. Binnion, 32, is accused of making the false report on Oct. 12, when she allegedly told police she was sexually assaulted by a man... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

MN - Two Harbors woman barred from picketing teen sex offender's home

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Original Article 11/15/2013 By Tammy Francois A Two Harbors woman threatened to stand outside the home of a juvenile registered sex offender on Halloween to warn trick-or-treaters after she says the criminal justice system failed to protect the community. But before she could make good on her threat, she was served with a temporary restraining order barring her from making contact with the offender and his family. She must also keep at least a block away from his home. According to court... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

Parole In Place: New Memo Outlines Immigration Benefits For Family Members of Military Personnel And Veterans

Tampa Tribune on Florida Juries

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"Should a split jury be able to recommend death penalty?" is the first of two articles on Florida capital juries in this Tuesday's Tampa Tribune. It's by Jose Patino Girona. When Dontae Morris's trial begins this morning, a jury will...

Ignoring Miranda Warnings, Man Arrested for Misdemeanor Weed Bargains Up to Federal Felony

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Have you ever heard of a criminal defendant talking his way into prison? It happens more often than you may think. An October 29, 2013 decision by the Fourth Circuit… read more →

Police say Scott driver registered 0.18 blood alcohol content

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In Louisiana, it should be understood by everyone that simply being accused of a crime does not make you guilty of that crime. That should be obvious on its face; people are innocent until proven guilty and are entitled to...

Judge Easterbrook's zinger in sentencing case

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Here's how the opinion starts: In 2011 a Commissioner of Dixon, Illinois, the childhood home of President Reagan, lauded Rita Crundwell, the City’s Comptroller since 1983, because “she looks after every tax dollar as if it were her own.” How...

GA: State did not prove valid inventory, and no inventory policy was even offered

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State did not prove valid inventory, and no inventory policy was admitted by the state to support it. Shaw v. State, 2013 Ga. App. LEXIS 907 (November 13, 2013). Lexis overview: https://efast.gaappeals.us/download?filingId=277d2ca2-7914-4263-85a6-200783585df0 [...] Read more!

Post-Offense Behavior

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Bronx Sex Crimes Lawyer said that, following a jury trial in which he was found guilty of six counts of sodomy in the first degree , one count of attempted sodomy in the first degree , two counts of sodomy...

SORA Guidelines ..,,, cont

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With respect to risk factor 15, the SORA Guidelines state simply that the offender's living or employment situation is inappropriate. The accompanying commentary expands on the meaning of inappropriate as many sex offenders are opportunistic criminals whose likelihood of reoffending increases when their release environment gives them access to victims or a reduced probability of detection. An example of an offender in an inappropriate work situation is a child molester employed in an arcade or as a school bus driver. If the same offender were to live near an elementary school playground, his living environment would be inappropriate. An offender is assessed 10 points in this category if either his work or living environment is inappropriate (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary. At the SORA hearing, the criminal defense counsel asserted that the defendant should not be assigned points under risk factor 15. First, he stated his understanding that the defendant has been advised that when he is released, that he should go to the Bellevue men's shelter as he has no other place to live and then he will be working with a community organization to try to find him employment. He argued that risk factor 15 was limited to living in a place, where there is for example a child or living with someone who had been sexually abused in the past. The People advanced a less restrictive reading of risk factor 15. The prosecutor noted that the defendant was known to be prior to this case basically homeless and not working; further, although the commentary in the sex offender guidelines talks about living situations or work situations that give the defendant access to victims it also talks about situations where there is a reduced probability of detection and given that the defendant has no community ties, if he were to commit this type of sex crimes again, there is a reduced possibility of detection because he will be hard to locate which is a factor relevant to whether he poses a risk. The defense counsel countered that when the SORA Commentary on risk factor 15 refers to a reduced probability of detection, this means only that a defendant will be in a certain situation where because of his relationship with possible victims, that will never be detected not because someone is homeless but because someone lives in the type of situation for example, with a niece and it will not be detected. He further argued that homelessness was relevant to whether defendant would be adequately supervised, which was covered by a different risk factor in the RAI, and here, in fact, the defendant is given five additional points under risk factor 14 because while he will be released with supervision, and not released with no supervision, he won't be released with specialized supervision. So he already is being given points because he has a somewhat precarious supervision situation. Supreme Court then asked if either attorney wanted an evidentiary hearing. When both responded negatively, the judge said that he would like an opportunity to reflect on the arguments put forward prior to making his decision. At the next court appearance, Supreme Court summarized the arguments made by both defense counsel and the prosecutor at the SORA hearing relative to risk factor 15; discussed a case cited by defense counsel as well as another case; and noted that he had reviewed the SORA Guidelines and Commentary. Having fully considered the arguments, the judge adjudicated defendant a level two sex offender. Explaining his decision, he stated that the fact that the defendant is not domiciled creates a very difficult situation as far as the probability of detection for any violations, and that there was no reason for a downward departure from the presumptive risk level. On March 10, 2006, Supreme Court imposed the agreed-upon sentence on the defendant. The defendant subsequently appealed his classification as a level two sex offender. On November 6, 2008, the Appellate Division modified Supreme Court's order on the law by reducing the defendant's classification to level one.

Court Rejects Stay of Discovery in SEC Insider Trading Action Against Mathew Martoma

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Judge Victor Marrero has acted quickly on prosecutors’ attempt to stay discovery in the SEC’s civil insider trading action against former SAC Capital portfolio manager Mathew Martoma, rejecting their efforts. Martoma faces criminal insider trading charges in the Southern District of New York, in addition to the civil charges brought by the SEC. As we reported yesterday, prosecutors sought to stay discovery in the SEC case, arguing that Martoma was trying to use the parallel SEC action to circumvent limits on criminal discovery and obtain evidence for use at his upcoming criminal trial. Judge Marrero was not persuaded, finding that the government had failed to set...
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