This week's Amato and Armando Show:
Our picks (Disagreement in BOLD (A) for Armando (J) for Amato): San Francisco 49ers -6 over Washington Redskins, New England Patriots +2 over Denver Broncos, (A) Arizona Cardinals -3, (J) Indianapolis...
[[ This is a content summary only. Visit my website for full links, other content, and more! ]]
NFL Sunday Open Thread
↧
↧
DWI, Vehicular Assualt Charges for Rutherford Motorist Compounded after Accident Victim Dies
We've said it before, but it bears repeating once again. Drinking and driving is not just a risky behavior in terms of losing one's license or paying thousands of dollars in fines; driving in an impaired state can potentially risk the driver's life and the lives of those around him. As New Jersey DWI defense attorneys, we work hard to clear the names of those individuals who have been accused of driving while intoxicated by alcohol or impaired by drugs. However, this doesn't mean that we encourage anyone to drink and drive.
For drivers here in the Garden State, it should come as no surprise that municipal police, state troopers and other law enforcement personnel maintain a very dim view of drivers who operate their motor vehicles while being even the slightest bit tipsy or inebriated. The same can be said for the judges in this state. For those convicted of DWI or drug DUI, the New Jersey DWI statutes provide stiff penalties for intoxicated or impaired driving.
Besides possible loss of driving privileges, monetary fees, fines and assessments can add up to thousands of dollars depending on the extent of the charges. Just the thought of losing one's personal independence can make many motorists think twice about even taking one drink and then getting behind the wheel. But there are worse scenarios.
↧
US AOC: 64 Federal Courts Now Publish Opinions on FDsys; added to side bar
US AOC: 64 Federal Courts Now Publish Opinions on FDsys:
A project providing free online access to federal court opinions has expanded to include 64 courts. The federal Judiciary and the Government Printing Office partner through the GPO’s Federal Digital System, FDsys, to provide public access to more than 750,000 opinions, many dating back to 2004.
Federal court opinions are one of the most heavily used collections on FDsys, with millions of retrievals each month. Opinions are pulled nightly from the courts’ Case Management/Electronic Case Files (CM/ECF) systems and sent to the GPO, where they are posted on the FDsys website. Collections on FDsys are divided into appellate, district or bankruptcy court opinions and are text-searchable across courts. FDsys also allows embedded animation and audio – an innovation previously only available with opinions posted on a court’s own website or on the Public Access to Court Electronic Records (PACER).
FDsys is now added to the sidebar, and it is a service of the GPO. Featured today are records of the Kennedy assassination. I tried searching for the Moalin opinion in the previous post, but that court is not online yet.
↧
The Stand-Your-Ground Laws in Florida
On Thursday, November 7, 2013, the Florida House Criminal Justice Subcommittee conducted a five hour hearing on House Bill 4003, which is legislation to repeal Florida's self-defense immunity statute (commonly known as the Stand-Your-Ground law). The measure was soundly defeated by a vote of 11 to 2. The hearing occurred after the 30 plus day protect against the Stand Your Law ground by the Dream Defenders. The Dream Defenders are a group of activist who camped out at the Florida State Capital promising not to leave until Governor Rick Scott held a special session to talk about repealing Florida's Stand-Your-Ground statute.Florida's self-defense immunity statute passed unanimously in the Florida Senate in 2005 with overwhelming and bipartisan support in the Florida House. In fact, the legislation passed 94 to 20.What Protections are Contained in Florida's Stand Your Ground Laws?Among other protections, Florida's self-defense immunity statute allows the defense to file a pretrial motion to dismiss the charges. The statute also provides for special jury instructions if immunity from prosecution is not granted on a pre-trial basis.Filing the pre-trial motion triggers a evidentiary hearing during which the trial court must either grant or deny the pretrial motion to dismiss after hearing testimony and reviewing evidence in the case.If the court denies the motion, the defense can appeal the decision to deny a “Stand Your Ground” motion before trial and the refusal to invoke self-defense immunity by filing a petition for writ of prohibition.During the hearing on the "Stand Your Ground" motion at the trial level, the state will argue that the defense bears the burden of proving his entitlement to self-defense immunity by the preponderance of evidence. The defense will often argue that the statute requires the State to bears the burden.At the motion the defense will argue that the defendant was justified in his actions. A person is justified in using deadly force when he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm to him or herself or another, or to prevent the imminent commission of a forcible felony. § 776.012, Fla. Stat. (2011) such as false imprisonment.False imprisonment, for example, is defined as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” § 787.02(1)(a), Fla. Stat. (2011).If the trial court finds that the other side's actions rise to the level of a forcible felony such as false imprisonment, aggravated assault, or another type of forcible felony, then the Defendant might be justified in his use of force on this basis. The trial court will consider whether there was an imminent threat and whether the Defendant's subjective fear was objectively unreasonable.Read more about Florida's self-defense immunity statute known as Florida's Stand Your Ground statute in this article written by criminal defense attorneys at the Sammis Law Firm in Tampa, Hillsborough County, FL.
↧
Tort as Backstop to Regulation in the Face of Uncertainty
Thomas Merrill & David Schizer, The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, Columbia Law and Economics Working Paper No. 440 (2013).Catherine SharkeyThomas Merril and David Schizer—a property law theorist and tax law expert— deliver an ostensibly new framework for analyzing tort liability-regulation tradeoffs, standing on the shoulders of the pioneer in this area in the 1980s, Steven Shavell. In The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, [...]
↧
↧
Case Update
↧
ABA Blawg 100 for 2013
I was honored to be included again on the ABA Journal’s list of the top 100 law blogs, this time for 2013. The Journal is now taking popular votes to determine the top law blog in each of 13 different categories. My blog is listed in the Criminal Justice section, and I would greatly appreciate […]
↧
No Criminal Case Is Sacred
When deciding whether an arrestee is guilty of a crime, the public typically will ask, "Well, what's the evidence?" When they hear that the chemist made a determination about something, they believe that they can rely upon it. Why would someone in the scientific community like a chemist and/or toxicologist lie and/or manufacture evidence? Well, ask Annie Dookhan.
Annie Dookhan, a former Massachusetts state chemist, was just sentenced to three to five years in prison after entering guilty pleas to 27 criminal charges, including, tampering with evidence, obstruction of justice and perjury. She was involved in an extensive scheme to defraud over nine years which included lying about the presence of drugs in test samples. A review of her work revealed that she falsified tests, lied about her academic credentials while testifying at trials, and forged initials of an evidence officer to conceal her misconduct.
While the state believes that approximately 40,000 cases may have been compromised by this woman, the ACLU believes the number is much higher. The lab in which Dookhan worked handled more than 100,000 cases while she was employed there.
As a result of her criminal actions, hundreds of criminal convictions have already been thrown out. I agree with Massachusetts Attorney General Martha Coakley who stated, “Her deliberate decision to tamper with drug evidence and fabricate test results harmed the integrity of the system and put the public’s safety at risk.”
The question is, "Why?" The answer, "Only she knows." Through all of this, no one knows exactly why she did what she did. The unfortunate fact is, she did.
As a result of her unlawful and unethical actions, the criminal justice system is even less sacred than it was. Our confidence in the process is further eroded. If we can't rely on the simple findings of a scientist, who it would appear has no interest in the outcome of any particular criminal case, then how can we rely upon anyone involved in the process? I'm just hoping and praying that this is just one extremely rare bad apple. I can't handle the thought that there are others like her out there. As I've said numerous times before, our criminal system is the best in the world. Unfortunately, being the best doesn't mean the justice system always produces justice. This scandal will serve of that painful reminder.
↧
The Kettering DUI Law Firm of Charles M. Rowland II
The Kettering DUI law firm of Babb & Rowland has proudly represented the accused drunk driver in the Kettering Municipal Court since 1995. You can find us on the web at www.KetteringDUI.com, www.KetteringOVI.com, and www.MoraineDUI.com. According to AVVO, Charles M. Rowland II is the only Superb 10/10 rated attorney who devotes 100% of his practice to DUI defense in Kettering. He has also been featured in Car & Driver and Time Magazine for excellence in the field of DUI defense. [Read the full post. . .]
↧
↧
Obstruction of a Maryland Police Officer’s Investigation
In Maryland, it is illegal to obstruct or hinder a law enforcement officer trying to perform his duties. There are three kinds of obstruction: direct obstruction (physical resistance), passive direct obstruction (refusal to act as required), and positive indirect obstruction (where police officer are acting against other citizens and a citizen not involved prevents their […]
↧
Why private prisons don't (and shouldn't) have immunity from civil rights litigation
Attorney Jennifer Hulvat has an article at Corrections One ("Unprotectcted: Private prison personnel and civil liability," Nov. 25) explaining why private prison companies and staff do not enjoy the same qualified immunity from civil rights lawsuits as publicly owned and operated prison units. Historically, Title 42 U.S.C. §1983 has provided a procedural mechanism for state and local prison inmates claiming violations of their civil rights to sue those acting “under color of law”. Qualified immunity, however, bars §1983 suits against certain state, local and federal officials unless the actor reasonably believes that his conduct violates a clearly established constitutional right. Certainly, claims suggesting deprivation of rights rooted in the Fourth Amendment, the Eighth Amendment and the 14th Amendment are ripe in the prison context. ...We need only look as far as the most recent Supreme Court opinion on the matter to quickly conclude that prison guards in private prisons are, for all practical purposes, exposed and vulnerable to liability for civil rights violations. The 1997 Supreme Court case of Richardson v. McKnight established that prison guards working for a private prison company that contracted with the state could not assert the defense of qualified immunity against civil rights allegations. There, two inmates in a privatized Tennessee prison alleged that prison guards subjected them to severe physical restraints, thereby depriving them a constitutionally protected right. The Court believed that “history does not reveal a ‘firmly rooted’ tradition of immunity applicable to privately employed prison guards”. Most notably, the Court found no reason to extend this critical protection to private contracted prison guards. The key factor in the Courts decision was that the person being accused of the constitutional deprivation was not hired directly by the government, rather “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for the profit and potentially in competition with other firms”.Hulvat clearly believes qualified immunity should extend to government contractors including private prisons and their employees, but that's a slippery slope she's suggesting the courts head down. The Geo Group is to TDCJ as the mercenary firm Blackwater was to the US Marines. There are good reasons why Blackwater retained liability when performing its functions and you couldn't set the precedent for one sort of entity without extending it to others. The government contracts for all sorts of services with the private sector: Should rental car firms enjoy qualified immunity because the government sometimes rents cars from them? Where would it end?In any event, Ms. Hurvat's complaint won't be satisfied anytime soon. She noted that a Supreme Court case in 2012 finding qualified immunity for an attorney hired to perform a police Internal Affairs investigation "was very careful not to overrule Richardson, finding that the employment relationship of a privately retained 'one' is quite different than the position and relationship of 'many' working for the entity hired by the government. For the time being, then, private prison guards facing civil rights allegations remain exposed and susceptible to liability."Strip away that liability and abuses would surely rack up. Already, private facilities tend to be less accountable and more prone to abuse than publicly operated ones (though both have their problems). In part that's due to underpaid, under-trained staff, high turnover, fewer services and a tendency to cut corners to maximize their bottom line. How much worse would those problems be if private facilities weren't accountable in court for abuses? In that vein, via Texas Prison Bidness, this morning I noticed this new report (pdf) from the Detention Watch Network about alleged civil rights violations at private immigration detention facilities, including in Polk County, TX. Government agencies are accountable to legislatures or other elected entities who can and do intervene - as happened at the Texas Youth Commission, for example - when serious problems arise. But private companies are only accountable to their board and shareholders. In Grits' view, SCOTUS was wise not to extend them immunity.
↧
NYT: N.S.A. May Have Hit Internet Companies at a Weak Spot
NYT: N.S.A. May Have Hit Internet Companies at a Weak Spot by Nicole Perloth and John Markoff:
Security experts said they believe that spies bypassed Google and Yahoo and accessed their data through the fiber-optic cables that link their data centers.
↧
Monmouth County Drunken Driving Police Blotter: DWI and Marijuana Possession Arrests
As DWI-and drug DUI defense attorneys, the legal team at my firm has made it their job to represent those Garden State drivers who have been charged with operating a motor vehicle while under the influence of alcohol, doctor-prescribed meds, and even illegal substances (also known as controlled dangerous substances or CDS). As experienced trial lawyers, we certainly understand how quickly an average motorist can find himself in the custody of a local cop or state trooper after being arrested for allegedly driving while intoxicated.
Here in New Jersey, DWI enforcement can be such that more than a few otherwise law-abiding citizens can end up before a judge pleading their innocence on a drunken driving or drug DWI charge. Especially when anti-drunk driving campaigns are going full tilt, but even when things may seem to be mostly quiet arrests can and do occur quite frequently. Hundreds of roadside stops for traffic violations are made every day around this state, and a percent of those may end up with a driver taken into police headquarters for a breath test.
Of course, New Jersey is in no way unique, but it certainly does see its fair share of inebriated drivers plying the roadways. Whether those motorists are legally drunk is for a court to decide, which is why we recommend that anyone accused of operating a motor vehicle while under the influence of alcohol or drugs talk to a qualified legal expert in the field of drunk driving law.
↧
↧
E.D.N.Y.: Use of an innocuous ruse to aid LEOs locate stolen cell phone was still valid consent to enter
The use of a relatively innocuous ruse to gain entry to defendant’s room was not unconstitutional. The officers did not exploit a made up exigent circumstance; rather, it was asking for help locating a stolen cell phone and to look out the window. Therefore, the consent to enter was valid. United States v. Monzon-Luna, 2013 U.S. Dist. LEXIS 166735 (E.D. N.Y. November 22, 2013):
[...] Read more!
↧
Proposed Legislation Adds Hardship for Registered Sex Offenders
Sex offenders face some of the most serious penalties upon conviction. In addition to fines and jail time, sex offenders are forced to register in a national database which can impact their civil rights and significantly reduce opportunities. It has been argued that sex offenders face even more penalties and hardship that violent offenders, including … Continue Reading
↧
D.Me.: No standing for property stashed on property of others
Seizure of a gun off property defendant admitted wasn’t his meant he had no reasonable expectation of privacy there. United States v. Stile, 2013 U.S. Dist. LEXIS 167144 (D. Me. May 6, 2013)* (Pro se motion not adopted by defense counsel decided anyway.)
Seizure of property out of another’s car meant defendant had no reasonable expectation of privacy there. Also, a search warrant involved in this motion was particular enough. United States v. Stile, 2013 U.S. Dist. LEXIS 166904 (D. Me. May 2, 2013)* (same).
The stop of the car defendant was a passenger in was based on the fact the driver was known to have a suspended DL. Defendant was previously suspected of methamphetamine trafficking in 2012, with a new allegation from 2013. Thus, there was reasonable suspicion to detain her further because of that. United States v. Rolenc, 2013 U.S. Dist. LEXIS 166681 (D. Neb. October 18, 2013).*
↧
Defendants Charged with Targeting Hispanic Borrowers in Perpetrating Mortgage Fraud Scheme
Rosita Vilchez, 39, Lima, Peru; Armando Pino, 53, Centerville, Virginia, currently in Peru; Edgar Vilchez, 38, Manassas, Virginia; Lorene Chittenden, 57, Centerville, Virginia; and Rocio Benavides, 28, Manassas, Virginia—have been indicted and charged with conspiracy to commit bank fraud and wire fraud affecting a financial institution and operating a continuing financial crimes enterprise. According to […]
↧
↧
CA2: 13 month delay in getting SW for computer in CP case was not unreasonable here
An Officer looking at defendant’s laptop saw a thumbnail image that was child pornography, and that was probable case for a seizure of the computer. The 13 month delay in getting a search warrant for the computer was not unreasonable under the circumstances here because defendant’s own liberty was not restrained. The delay was based on an error, not lack of diligence. United States v. Howe, 2013 U.S. App. LEXIS 23608 (2d Cir. November 25, 2013):
http://www.ca2.uscourts.gov/decisions/isysquery/45faf30a-9363-46ea-a5bd-caac645b4698/17/hilite/
[...] Read more!
↧
Attorney for Jane Bashara's Alleged Killer Appeals Murder Conviction; Prosecutors Fight for Denial
In December of 2012, Joseph Gentz pleaded guilty to second-degree murder in the January 2012 strangulation death of Jane Bashara. Bashara's husband, Bob Bashara, allegedly threatened Gentz and offered him money to kill his wife.
According to news reports at the Detroit Free Press, Gentz did not fully understand the plea of second-degree murder he was entering into. Appellate attorney Phillip Comorski who was appointed to represent Gentz filed a document with the appeals court regarding a letter written to the Wayne County Circuit Court which indicated "certain conditional promises associated with the plea were not fulfilled by the prosecutor."
Ultimately, the document filed with the appeals court indicated that the trial court failed to address the claims of Gentz's letter adequately, and that a post-conviction hearing was conducted by the trial court without the presence of the defendant's appellate lawyer.
Throughout the murder trial, Gentz was represented by another attorney who explained to Gentz that by withdrawing his plea, he would once again face potential life in prison for a conviction on first-degree murder charges. Gentz allegedly has an IQ level considered below average, but he was found to be mentally competent to stand trial on the murder charge.
Comorski appealed Gentz's conviction toward the end of September; approximately one month later, prosecutors responded by arguing that the appeal of the defendant's conviction should be denied. Gentz was originally sentenced to 17 to 28 years in prison. Prosecutors filed a document with the Michigan Court of Appeals arguing that Gentz cannot challenge his plea on appeal without moving to withdraw the plea in trial court on the same grounds.
News articles indicate that Gentz appeared at a July 17 hearing with Reed, requesting to withdraw his guilty plea in front of Wayne County circuit Judge Vonda Evans. Prosecutors argued that Gentz expressed no dissatisfaction with the representation Reed provided him at that time. Comorski asked that a proper hearing in front of the judge be held so that he can determine whether other considerations were offered to his client which were not followed through on by Reed.
↧
Saginaw Township Man Pleads No Contest to Sexual Assault, Gets Five Years Probation
In July of this year, 39-year-old Miguel Rapin of Saginaw Township was charged with sexually assaulting a young female relative between August and September of 2012. Rapin waived his right to a preliminary hearing on July 23, and was bound over to Circuit Court. He was initially charged with one count of first-degree criminal sexual conduct against a relative, and one count of second-degree criminal sexual conduct against a relative.
In October, Rapin agreed to plead no contest to two counts of fourth-degree CSC in exchange for prosecutors dropping the first- and second-degree charges. In doing so, he escaped serving prison time. First-degree criminal sexual conduct is punishable by up to life in prison.
Christopher Boyd, Saginaw County Chief Assistant Prosecutor, said that it was decided the office would offer Rapin a plea deal after the alleged victim's testimony in Family Court contradicted statements she had made to police earlier. Saginaw County Circuit Judge Darnell Jackson indicated following a Cobbs hearing that if the defendant would plead to the fourth-degree counts, he would be given a sentence which included wearing a tether and probation. Rapin was sentenced to five years probation and ordered to wear a tether for six months.
While all sexual assault cases are complex, those involving relatives can be particularly complicated. As indicated in this case, it is not unusual for an alleged victim to change his or her story. News reports did not reveal the difference in what the victim initially told police, and what was said in her testimony. While it is not always a good decision to accept a plea offer from prosecutors, in some instances it is to a defendant's advantage.
↧
More Pages to Explore .....
