The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world. I regularly turn to their model policy and training documents when working on those issues for police agencies. So it’s a big deal to see their new report, prepared in […]
IACP Becomes a Partner in Efforts to Stop and Correct Wrongful Convictions
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Well, Blewett Is Out . . . .
Well, the Sixth Circuit en banc released Blewett yesterday. Get out your hankies. This one's a tear jerker.United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013). The majority opinion is by Judge Sutton. Judge Moore concurred. Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented. The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect." Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot. The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal. *The FSA does not apply to those sentenced pre-FSA.* 3582(c)(2) doesn't get around this prohibition.* The Constitution can't help either. Points of interest:* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it. Not present in FSA, which is "forward looking." * Distinguishes Dorsey. * All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect. * 3582(c)(2) does not help: these proceedings are not plenary resentencings. * Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions. * Equal-protection and cruel-and-unusual arguments under the Constitution fail. No racially discriminatory purpose, so disproportionate effect allowed to stand. * Gov "has a powerful interest in avoiding the disruption of final sentences." * 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted." Such a holding might actually discourage lawmakers from lowering sentences. * The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences. * Many believe "Congress should think seriously about making the new minimums retroactive."Judge Moore's Concurrence:* Agrees with majority's judgment, but has reservations. * Sees issues with jurisdiction (the one defendant is now on supervised release). No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits). Nevertheless, she would deny the gov's motion to dismiss. Term of supervised release could be reduced if appeal determined favorably, so appeal not moot. * 1 USC 109 governs: no retroactivity. * Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed. Crack-powder disparity = racial disparity. And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now. I will explore the dissent tomorrow.
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For those who thought New York's stop-and-frisk program was bad
Check out The Onion.
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Canada Unveils Billion-dollar Medical Marijuana Free Market
As the U.S. drastically changes the national health care system through the implementation of Obamacare, our neighbors to the north are also overhauling key aspects of their health care structure. In an attempt to move existing medical marijuana market from individual grower or total-government control into the hands of private enterprise, Canada recently launched a marijuana free market estimated to be worth $1.6 billon yearly. The new market will open the doors to legalized international marijuana trade since Canada will allow marijuana imports from countries like the Netherlands. The Canadian government will not directly interfere with prices of marijuana and the marijuana will be priced at whatever amount the market can bear. Initially, medical marijuana consumers will likely see a price bump in marijuana; however experts estimate that with time the marijuana prices will decline as a result of competition between marijuana businesses. In fact, medical marijuana under the new system is projected to fall to $3 a gram. Patients needing access to medical marijuana, even patients that were approved under Canada's prior medical marijuana system, must have a medical professional prescribe medical marijuana to the patients through the use of a government-approved form. Canada hopes to be able to serve half a million patients by 2024.
Canada's greater embrace of medical marijuana comes at a time of increasing support for medical marijuana across the world, especially from the U.S. One of the U.S.'s most trusted medical authorities, CNN's chief medical expert, and past candidate for U.S. Surgeon General, Dr. Sanjay Gupta, has recently voiced strong support of medical marijuana. Dr. Gupta even apologized for being wrong regarding his past opposition to medical marijuana. Forty percent of U.S. states have passed medical marijuana laws, despite conflicts with federal law that classifies marijuana as one of the most dangerous drugs with no medical benefits. The American Medical Association has supported a change to this federal classification to allow for better research into the medical properties of marijuana.
Canada's move highlights the fact that the U.S. is the only major country in North America that has not reformed marijuana laws on a federal level. With Mexico's federal government decriminalizing small amounts of marijuana in 2009, Canada's federal government legalizing medical marijuana in 2001 and now expanding the medical marijuana system, the U.S. federal government lags behind in terms of continent-wide reform.
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TALKING DIRTY IN THE COURTROOM
Florida State and Federal courts have rules to stop prosecutors from making conclusions and accusations in their questions, opening statements and closings. Smart lawyers watch out for this prosecutor’s trick. If you have an active criminal case, felony or misdemeanor, speak to your criminal defense lawyer about how to defeat this prosecutor’s trick…
I have several “PAIN CLINIC” cases in my office, some in Florida Federal court and some in Florida State courts. Each time the prosecutor uses the words “pill mill” I’m on my feet. My doctor clients are physicians at a pain clinic, not a “pill mill”. Watch for words that make you look bad, like “the accused” (you are a defendant), and object. I do!
Think out of the box and look for ‘dirty words’ and tell your criminal defense lawyer to object. In Florida State criminal courts here in Fort Lauderdale and Miami, attorney Ralph Behr (me) is famous for sending prosecutors to the woodshed for bashing my clients with “dirty words” like “evildoer” and “bad man” and “criminal”. A fair trial means the prosecutor, whether in Palm Beach criminal courts or a court near you.. cannot accuse and abuse a defendant by using words that contain conclusions: that’s for the jury to determine.
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The Recorder: In Privacy Opinions, Federal Judges Air Differences
The Recorder: In Privacy Opinions, Koh and Grewal Air Differences by Julia Love:
[...] Read more!
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Attorney Believes Jameis Winston Won’t Be Charged
[UPDATE: As predicted by Defense Attorney Avery Appelman, no charges have been filed against Jameis Winston. He will be able to play in Saturday's ACC Championship, as well as any Bowl game. Avery Appelman will be on Sports Radio 105 The Ticket at 3:15pm today to discuss the ordeal] The prosecutor overseeing the case of […]The post Attorney Believes Jameis Winston Won’t Be Charged appeared first on The Appelman Law Firm Law Blog
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NYT: Internet Firms Step Up Efforts to Stop Spying
NYT: Internet Firms Step Up Efforts to Stop Spying by Nicole Perloth and Vindu Goel:
After surveillance by the National Security Agency, major Internet companies like Microsoft and Yahoo have moved to strengthen protections of users' data.
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WaPo: NSA tracking cellphone locations worldwide, Snowden documents show
WaPo: NSA tracking cellphone locations worldwide, Snowden documents show by Barton Gellman and Ashkan Soltani:
[...] Read more!
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Judicial Override in Alabama
"Politics, not justice, in Alabama death penalty cases," is the title of a Los Angeles Times OpEd by Andrew Cohen. Here's the beginning: A murder trial is held and the defendant is convicted. After hearing the mitigating and aggravating circumstances...
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Yet another effective review of the child porn restitution challenges facing SCOTUS
I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic. (The parties' main briefs...
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Do Only Turkeys Get Pardons?
It is a Thanksgiving tradition for the president to pardon a turkey. This year, CNN reports, it was a Minnesota bird named Popcorn. But is executive clemency limited to avians? This post briefly explores the available data. Decline in federal clemency. Though he pardoned a turkey, President Obama has not pardoned many people. The New […]
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Bay City Man's First-Degree Murder Conviction in Death of Girlfriend Upheld by Michigan Court of Appeals
In July of 2012, 23-year-old Jeffrey A. Julian II was convicted of first-degree murder in the 2010 murder of his girlfriend, 33-year-old Lynn M. Spicer. In declaring Julian guilty, Bay County Circuit Judge Harry P. Gill stated that, "I don't think there's ever been a crime as thought out as Mr. Julian's intent to kill this woman." The judge went on to say that there was absolutely no doubt Julian was guilty of first-degree premeditated murder.
Julian and his brother, Craig, allegedly killed Spicer on August 21, 2010 outside the home Jeffrey Julian and Spicer shared. The two brothers reportedly buried the victim's body in a grave in a vacant lot adjacent to their home, which had been dug at least one week earlier according to news reports. Julian wanted to end the relationship, which began in 2009. On the pretext of having sex, the defendant lured Spicer outside their home with the intention of strangling her. Craig Julian was convicted in June of 2012 in the murder and is serving life in prison without the possibility of parole.
Jeffrey Julian appealed his conviction arguing that his Miranda rights were violated as a conversation he had with a friend in which he confessed to the murder and which was recorded for police should have been suppressed. Julian also argued that he should have been given a second independent psychiatric evaluation after asserting an insanity defense, which the trial court did not permit. Julian's third argument with the appeals court was that he had ineffective counsel. The Michigan appeals court panel concluded that all three arguments were without merit. His conviction was upheld.
Craig Julian also appealed his conviction for aiding and abetting murder in the killing of his brother's girlfriend; his conviction was also upheld by the appeals court in December of 2012.
Appealing a conviction for a violent crime such as murder is a complex process; as indicated above, winning an appeal is not easy, and in fact is a rare occurrence. Individuals who believe they have strong grounds to appeal a conviction or sentence must have a capable and highly experienced Michigan criminal appeals attorney to ensure the best possible chance of winning.
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CNN: The wrong people decide who goes to prison
CNN: The wrong people decide who goes to prison by U.S. District Court Judge Mark W. Bennett and Professor Mark Osler:
[...] Read more!
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"Treating Juveniles Like Juveniles: Getting Rid of Transfer and Expanded Adult Court Jurisdiction"
The title of this post is the title of this notable new piece by Christopher Slobogin which I just noticed via SSRN. Here is the abstract: The number of juveniles transferred to adult court has skyrocketed in the past two...
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Dearborn Man Sentenced to Life in Prison for September 2012 Shooting Death
In October we wrote about Michael Hamilton, a Dearborn man who was charged with open murder in the shooting death of 49-year-old Robert Marcyan. Hamilton was convicted in October, and recently sentenced to life in prison without the possibility of parole. Jackson County Circuit Judge John McBain told Hamilton upon sentencing, "You are going to die in the Department of Corrections."
Hamilton was charged with open murder, assault with intent to murder, and other charges. Marcyan was a twin; he and his brother Richard were at Hamilton's father's cottage after having been requested to provide an estimate to perform some work on the property. Hamilton's father was supposed to meet the brothers, but was injured and could not make the appointment. Instead, the defendant met with the brothers. He had reportedly met the two men on one occasion, approximately a month earlier.
No clear motive was given for the murder, however George Lyons, the defendant's attorney, argued that his client was involuntarily intoxicated by Adderall and was suffering side effects of the drug when he allegedly shot Robert Marcyan in the head. He also fired at Richard Marcyan, but did not hit him. Lyons maintained that because of the Adderall, Hamilton was legally insane when the shooting took place.
Kati Rezmierski, Chief Assistant Prosecutor, said that the victim was driving an older model BMW and wearing $30,000 in jewelry, and that Hamilton was "just another drug addict motivated by money."
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In a Child Porn Case, the Fourth Circuit Clarifies Who's Opinion About Custody Matters, and Worries about the Government Having a 'Heavy Foot'
In many ways, Faisal Hashime's case is a typical child pornography case. A government agent was on the internet looking at child pornography. He saw an email address. He emailed that address and the person who answered agreed to send some child pornography to him.
Agents traced the IP address for the email that was sent, and it led to the Hashime residence. There, 19 year old Faisal Hashime lived with his family while he went to community college in Northern Virginia. The agents got a search warrant, as they almost always do in child pornography cases.
Armed with a battering ram, a search warrant, and a phalanx of officers, they stormed into the Hashime residence one morning.
They ordered Faisal and the rest of his family outside. Like many college students, Faisal had been up until 5 a.m. He was wearing his boxer shorts and was forced to stand with the rest of his family in the front yard where the neighbors could see him. It was a chilly morning in this Washington, D.C. suburb, but the family was forced to stand outside in the cold.
Eventually, the family was taken back inside. They weren't allowed to move around their home. They were then taken into their living room. Faisal asked to go to the bathroom but was refused. His mother, who was recovering from brain surgery, asked to lie down, but was not allowed to.
Finally, Faisal was taken to an unfinished part of the basement and interrogated for three hours. He was told he could leave and that he didn't have to make a statement, but he was also told by the officers that they needed to get the truth from him, and that they couldn't leave him there alone.
His mother told the agents that they shouldn't talk to him without a lawyer, but they ignored her and wouldn't let her near Faisal.
At one point, he asked if the interrogation was being recorded. The lead agent told him he wasn't recording the conversation. One of his colleagues, though, was.
He wasn't given Miranda warnings until the end. But before those warnings, he gave a lengthy confession.
He was indicted for possession of child pornography, receipt, distribution, and production.
He filed a motion to suppress his statement, saying that it was custodial and he wasn't given Miranda warnings.
The district court in the Eastern District of Virginia listened to the tape. She said that Faisal sounded calm, so he couldn't have thought he was in custody. The motion was denied.
The Fourth Circuit, in a surprisingly strong opinion by Judge Wilkinson in United States v. Hashime, overturned the district court.
The Fourth Circuit pointed out that here, the agent's action looked like this was custodial. Yet Faisal's demeanor looked like he didn't think this was custody (as far as one could tell from the tape).
But, while the district court relied on Faisail's demeanor, the Fourth Circuit pointed out that it should have, instead, focused on the agents' conduct.
Whether a person is in custody depends on whether a reasonable person in that situation would think she isn't free to leave. It's a classic objective test.
So, the Fourth Circuit pointed out - things from the point of view of the person being interrogated kind of don't really matter. The question isn't what that guy thought, but what someone in his position should have thought.
So the case was remanded for a new trial.
But that's not the only thing interesting about this case.
Faisal decided to plead guilty to the charge of possession and receipt. The receipt of child pornography charge alone carried a mandatory minimum term of five years.
The government, wanting to push forward for even more time, went to trial on the production and distribution charge. The production charge is perhaps the most disturbing - Faisal "produced" child pornography by convincing boys on the internet to send him naked pictures of themselves.
He was convicted, and a fifteen year mandatory minimum applied.
Looking at this, the Fourth Circuit said,
Our reversal of the conviction makes it unnecessary to address any sentencing questions. It suffices to note that, in line with our own review of the custody issue and the district court's comments at sentencing, this was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant's conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.
This is not your father's Fourth Circuit
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Metro North Derailment—What Happened?
The tragedy on the southbound Metro North Poughkeepsie train in the Bronx this past Sunday, December 1, 2013, is under investigation by both the National Transportation Safety Board (NTSB), the MTA Police, the NYPD and the Bronx District Attorney’s Office to determine if a crime was committed. The train derailment at a wide turn just north of the Spuyten Duyvil station southbound killed four people and injured more than 70, with several critically injured. When it was first reported on Sunday morning, it seemed particularly shocking, as train accidents and derailments are somewhat rare, and fatalities on trains even less likely. The Federal Railroad Administration conducted a study over a ten year period from 2004 to the present which revealed that train incidents and derailments have steadily declined from 4,503 in 2004 to 1,751 to date this year; derailments have decreased from 2,766 in 2004 to 1,053 in 2013; and prior to the December 1st Metro North derailment, there was only one other train fatality in all of 2013.
The train operator, William Rockefeller, is a 15 year veteran of the company, and has been interviewed by NTSB investigators and the MTA police. It has been reported that speed was clearly a factor in the derailment; the train was traveling at 82 miles per hour shortly before the derailment and the speed limit in that location is 30 miles per hour, as there is a wide turn to the left away from the Hudson River. The brakes had apparently been checked by Metro North personnel at approximately 5:00 AM that Sunday morning and “there were no anomalies found”, according to the NTSB spokesman Earl Weener. Further, the brakes have purportedly been examined post accident and appear to have been in working order.
Mr. Rockefeller claims that when he realized that the train was going too fast into the turn, he shut down the throttle, attempted an emergency braking maneuver and braced for the impact. The New York Times reported on December 4 that some trains have an “alerter” system by which an alarm will sound if inactivity is detected, and if the operator does not respond by pushing a pedal within 15 seconds, the brakes will automatically be applied. Unfortunately, the diesel train involved in the accident was not equipped with the alerter system.
It was reported by the Journal News that blood tests have come back negative for alcohol. Drug tests are pending. A law enforcement spokesperson who spoke on condition of anonymity due to the ongoing investigation stated that the preliminary examination of Mr. Rockefeller’s phone does not show that he was texting or on a call when the train derailed.
The issue of sleep, or the lack thereof, appears to be the most likely cause of the accident. There are reports as of the writing of this article that Mr. Rockefeller may have “dozed off” just prior to the accident, and experienced something similar to what is known as “highway hypnosis”, by which the driver goes into a dream state and is not focused on the road or track ahead of him. It is notable that two weeks before the accident, Rockefeller’s schedule was changed from the night shift to the early morning run. Thus, beginning in Poughkeepsie at 5:04 AM, and starting the train at 5:54 AM, was a significant change in schedule for Mr. Rockefeller. Why this schedule change was made is unknown at this time. A union spokesman for the Association of Commuter Rail Employees claimed that the change in Mr. Rockefeller’s hours could be related to the “circadian rhythm with respect to sleep.” Circadian rhythms involve the body’s “clock regulated mechanisms over a 24 hour period which are affected by light and heat, among other factors.
Ironically and tragically, there is technology known as “positive train control” which could have prevented the derailment. Before the train left the station, a computer would download a “physical characteristics file” which includes all details of the route such as curves, speed limits, and track work, and assisted by GPS and WiFi, the train’s engineer would be advised of any issues or changes. If the train was going at an excessive rate of speed, positive train control would inform the engineer to slow down. If he did not respond promptly, the system would automatically apply the brakes. In 2008, Congress passed legislation mandating positive train control by 2015 in commuter and freight rail lines. The MTA is apparently in the process of developing the system for Metro North and the Long Island Rail Road, awarding almost half a billion dollars to various contractors. However, the system is still more than one year from being mandated, and in fact, the MTA is now requesting an extension until 2018, stating that installing positive train control in 1000 cars and 1,200 miles of track will be a substantial endeavor that can’t be completed by 2015.
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Guilty pleas in vigilante baseball bat attack
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Ignition interlock device may be required after DWI convictions
It goes without saying that being convicted of drunk driving in Louisiana carries serious negative consequences. Aside from the expense associated with a conviction, the state keeps a close eye on those who have been convicted of drunk driving. In...
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