NYT: Without Jury, Judge Warned That Stop-and-Frisk Ruling Would Be Disputed by Benjamin Weiser and Joseph Goldstein:
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NYT: Without Jury, Judge Warned [in 2012] That Stop-and-Frisk Ruling Would Be Disputed
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How Pot Legalization in Colorado May Affect Maine
Marijuana sale in Colorado became legal on January 1, 2014. In response to this, several media outlets report that there were long lines outside of new marijuana dispensaries On New Year's Day as many people came out to show their support for the new law and obtain legal marijuana. CNN reports that this is a landmark event because Colorado is the first state to legalize recreational marijuana use and purchase. Under this law anyone can purchase up to 1 ounce of marijuana for personal recreational use.
In 2012, Colorado citizens voted in favor of legalizing marijuana use and setting up legal marijuana dispensaries. Colorado was the first state to legalize the drug as well as set up shop running under government regulations. The state already allowed medical marijuana sales but this new law makes it legal for anyone to purchase the drug without having to qualify. According to the CNN article:
Colorado becomes the first place in the world where marijuana will be regulated from seed to sale. Pot is the third most popular recreational drug in America, after alcohol and tobacco, according to the marijuana reform group NORML.
There are some limits to the laws, however. For example, communities can decide individually whether or not they want to allow marijuana retail shops. CNN states that there are about 30 stores throughout the state of Colorado that began selling recreational marijuana. Of those, 18 are located in Denver. Also, the drug can only be consumed on private property with the owner's permission. Public drug use is still illegal. Drug sales are very much like alcohol. A person must be 21 in order to purchase or use marijuana. All over the city of Denver new signs were put up to inform people that public drug use is still illegal as is trading or giving marijuana in public spaces.
Many believe that a lot is riding on the success of this program in Colorado. They feel their acceptance of legal marijuana will have a huge impact on marijuana laws all over the country. Washington voters also approved to legalize marijuana but the state is still a few steps behind Colorado in terms of setting up licensed legal retail establishments. Voters in Portland also recently approved a bill that decriminalized the drug in the city. Marijuana is still illegal under Maine state and federal statutes, but Portland police have stated that they will likely not be enforcing it as long as drug use is done responsibly and in private.
Based on the success of Colorado, more marijuana legalization is a realistic possibility for many states including Maine. For now, drug and marijuana use and purchase is still illegal in the state as a whole and enforced in most cities in Maine. Just because a drug is legal in some states does not mean that a person cannot be charged for drug related offenses in others. For example, driving while intoxicated by marijuana in Maine is still a crime and can result in criminal charges even in Portland.
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OR - Sex offender refuses to talk about why he has prohibited Facebook page
Original Article
Must be a slow news day for the news media to show up at the probation office to harass ex-offenders coming in to register. Just because Facebook may have a policy doesn't mean the person cannot be on the site, but hey, sex sells, especially when you attack ex-sex offenders.
01/02/2014
By Anna Canzano
PORTLAND - His name is _____, and he's not exactly pleased to see us. He's showing up to check in with his probation officer downtown, ordered to appear because of what we...
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NV - New Law Puts More Sex Offenders on the Map
Original Article
01/02/2014
By Nathan Baca and Alex Brauer
LAS VEGAS - People may soon find out there are more sex offenders living in their neighborhood than they thought.
That is because a newly enforced state law is about to re-define who is considered a sex offender who must register.
Judges and child welfare advocates say that it is going to be more difficult to tell who is a sexual predator because the sex offender map is now going to flag anyone who has committed a sexual offense,...
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GA - Gwinnett Police Offer Child Pornography Warning
Original Article
01/03/2014
By Sarah Bakhtiari
From the Gwinnett County Police Department:
In light of the holidays, with many children receiving electronic devices with Internet access for the first time, the Gwinnett County Police Department has issued an advisory to parents and children on how to prevent unlawful sexual behavior with social media.
There are a variety of surveys and studies regarding “sexting” amongst teens available online. Some report as many as 26 percent of teens...
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Father of Jimmy Ryce Discusses Killer's Execution
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2013 Supreme Court Case Says Warrant Needed For Blood Test
Prior to the 2013 decision made by the Supreme Court of the United States, a warrant was not needed anytime someone refused a breathalyzer test or the intoxilizer at the police station after being arrested for a DUI. Driving on our thoroughfares is considered a privilege and not a right. Thusly, if you refuse to […]The post 2013 Supreme Court Case Says Warrant Needed For Blood Test appeared first on .
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The Laptop, Child Exploitation and the Expert Witness
--> After a jury convicted him of five counts of child exploitation in violation of Mississippi Statutes § 97-5-33, John Bartholomew Lowe appealed. Lowe v. State, 2013 WL 6503609 (Supreme Court of Mississippi 2013). As this news story notes, the trial judge “gave Lowe a life sentence for each count.” Lowe then appealed twice, first to the Mississippi Court of Appeals and then, after that court affirmed his conviction, to the state supreme court. Lowe v. State, supra. Each count “alleged that on June 6, 2009, Lowe downloaded sexually explicit images or videos of children under the age of eighteen via the internet to his laptop computer.” Lowe v. State, supra. After he was charged, the judge “entered an arraignment order, determining that Lowe was indigent and appointing him counsel.” Lowe v. State, supra. The opinion does not explain precisely how the prosecution arose, but it does outline the evidence presented at the trial, which began on April 11, 2011:Marie Taylor testified she and her two daughters had resided with Lowe for some time. She testified that they each used Lowe's computer under various user names and passwords. Further, she explained Lowe never refused anyone access to his computer and that, on at least one occasion during a party, numerous visitors had access to the computer. Finally, she testified that, to her knowledge, [he] had never downloaded pornography.Lowe's employer testified that on June 6, 2010, Lowe worked alone at a Masonite Corporation plant. The investigating officer testified that he and the State's computer forensics expert drove around near that plant and found several unprotected internet networks that Lowe could have used to download the content. Finally, Tom Thomas, the State's expert, testified that all five of the files in question were saved under Lowe's user name and password. He also testified that it appeared the files were downloaded through unprotected networks, including an unprotected network at a McDonald's near the Masonite plant. Finally, Thomas opined that the `digital fingerprint’ pointed to Lowe as the individual who downloaded the files. Thomas did acknowledge, however, that someone could have placed the content on Lowe's computer from a different computer and that someone else could have downloaded the content using Lowe's user name and password. But Thomas testified that, in his opinion, neither of those was likely here.Lowe v. State, supra. According to the opinion, Lowecontended that several others had access to his computer, and that someone else had downloaded the material. He requested funds to hire an expert to assist him in refuting the opinions of the State's expert. Lowe v. State, supra. Thomas, who testified for the prosecution at trial, “performed a forensic examination of Lowe's laptop for the State”, which provided the basis for his testimony. Lowe v. State, supra. Since Lowe and his attorney were clearly aware of the role Thomas’ examination and testimony would play at the trial, Lowe initially raised his need for an expert in a motion for continuance filed March 18, 2010. Therein, Lowe argued that he needed additional time to prepare his defense so that he could obtain an expert to examine the computer's hard drive. That same day, Lowe filed a motion for funds to hire a computer expert. In that motion, Lowe argued that, because the State's expert had examined his hard drive and allegedly had found illegal material, he needed an expert to refute those allegations. He informed the court that he was an indigent defendant and would be unable to afford to pay his own expert.Lowe informed the court an expert would be necessary to `examine the hard drive which is alleged to have come from his computer to determine who could have downloaded the pictures and video clips onto his computer’ and `to determine when the material was downloaded and under whose user name and password the alleged child pornography was accessed.’ Lowe averred that his expert was necessary `to properly meet the charges against him,’ and that granting a continuance and providing funds to obtain an expert would cause no harm to the State. Finally, Lowe presented an estimate of $1,500 as the cost to obtain the necessary expert. Thereafter, at a motion hearing before the trial court, the State agreed to a continuance so Lowe could attempt to obtain funds for an expert and review discovery, but the trial court failed to rule on the motion for funds.Then, on May 27, 2010, Lowe filed a second motion for continuance. In this motion, Lowe asserted that, following his previous motion for funds, the trial court had instructed Lowe's counsel to speak with the State's expert. Lowe informed the court that the State's expert had refused to discuss the specifics of his forensic examination and had agreed to meet with Lowe's counsel less than two weeks before trial. Lowe averred that, without an expert of his own, counsel would lack the requisite knowledge to question the State's expert properly. Lowe also reasserted his prior argument that he required an expert `to determine the presence or absence of other user names and passwords” and “the time the alleged pornography was added to the computer.’ Finally, Lowe argued that a continuance was `absolutely necessary’ so that he could obtain an expert and give that expert the requisite time to analyze the hard drive.Lowe v. State, supra. On June 3, 2010, the trial judge “denied Lowe's motion for expert funds” and on June 8 he “granted Lowe's continuance following a hearing on that motion.” Lowe v. State, supra. During that hearing, the judge told “Lowe's counsel he needed to consult with the State's expert before the court would burden the State with funding a defense expert.” Lowe v. State, supra. Lowe’s attorney told the judge “he could not adequately prepare to question the State's expert without the knowledge of a defense expert.” Lowe v. State, supra. On November 9, 2010, the judge “entered a second order denying expert funds.” Lowe v. State, supra. Lowe went to trial without an expert witness. Lowe v. State, supra. The Supreme Court began its analysis of Lowe’s appeal by noting that the U.S. Supreme Court `has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.’ We have echoed this principle, holding that a trial court must provide expert assistance to an indigent defendant when denial of such assistance would render the trial fundamentally unfair.Lowe v. State, supra(quoting Ake v. Oklahoma, 470 U.S. 68(1985)). The court also explained that “the determination of whether an indigent defendant must be provided expert funding is made on a case-by-case basis,and `[a] defendant must demonstrate a substantial need in order to justify the trial court expending public funds for an expert to assist the defense.’” Lowe v. State, supra (quoting Richardson v. State, 767 So.2d 195 (Mississippi Supreme Court 2000)). The Court of Appeals affirmed Lowe’s conviction and sentence because it found he failed to demonstrate substantial need. Lowe v. State, supra.In Ake v. Oklahoma, supra, the Supreme Court explained why indigent defendants have a Constitutional right to the fund needed to hire essential expert witnesses:`This elementary principle, grounded in significant part on the 14th Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.’Lowe v. State, supra(quoting Ake v. Oklahoma, supra). The Ake Court outlined three factors courts are to use in determining whether access to an expert witness is “a basic tool of an adequate defense.” Lowe v. State, supra.`The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.’Lowe v. State, supra(quoting Ake v. Oklahoma, supra). The Ake Court also noted that the defendant’s interest in accurate criminal proceedings is “`uniquely compelling’” and that the State’s only interest in not funding a defense expert is “the insubstantial interest of avoiding the financial cost.” Lowe v. State, supra.The Supreme Court then took up Lowe’s case, noting that here, the prosecution could not have convicted Lowe simply by showing the sexually explicit images and videos were on his computer. It had the burden to prove beyond a reasonable doubt that Lowe, himself, downloaded them. The State presented its case without the testimony of any lay witnesspurporting to have knowledge that Lowe downloaded the files in question. Instead, the State relied solely on the opinions of its expert witness to establish that the files existed on Lowe's laptop and that Lowe, rather than another individual using his laptop, downloaded the images from the internet.Anticipating this reliance on expert testimony by the State, Lowe's counsel repeatedly explained to the trial court its specific needs for an independent expert in computer forensics. Lowe's counsel argued that he needed an expert to examine the computer's hard drive and to refute the State expert's allegations that the hard drive contained pornographic images of children. He further argued that an expert was necessary to determine who downloaded the content and under what user name and password.Lowe v. State, supra.It also noted that as the U.S. Supreme Courtfound vitally important in Ake, counsel argued Lowe needed an expert to provide him with the requisite information to adequately question the State's expert. Ironically, both the trial court and the Court of Appeals seem to opine that Lowe's counsel should have been able to articulate problems with the State expert's opinion by questioning that expert pretrial, but before obtaining an expert to provide the necessary knowledge to know what questions to ask. This view presupposes that the State's expert would have assisted Lowe in deciding whether his opinions could be successfully attacked by another expert. Stated another way, had Lowe's counsel asked the State's expert: `Sir, do you think another expert appointed by the court to assist Lowe could successfully attack some of your opinion?’ we think the answer -- which probably would have been `no’ -- would have been unhelpful in our analysis.Lowe v. State, supra.The court therefore found that[c]onsidering each of the reasons articulated by trial counsel, the probable value of an independent defense expert must weigh heavily in favor of a substantial need for a state-funded independent expert. And, as in Ake, both the State and the defendant have interest in an accurate resolution of this criminal case. The State's interest in avoiding the cost of providing an independent expert cannot overcome those needs. Where, as here, the State relies on expert testimony alone to connect the defendant to the offense charged, an independent defense expert is part of the `raw materials integral to building an effective defense,’ and the trial judge deprives an indigent defendant of a fundamentally fair trial by refusing him funds to procure such an expert.Lowe v. State, supra(quoting Ake v. Oklahoma, supra).The Supreme Court therefore reversed the Court of Appeals’ judgment affirming Lowe’s conviction, reversed the conviction and remanded the case for a new trial. Lowe v. State, supra. It also directed the trial judge to “provide Lowe funds to obtain an expert in computer forensics.” Lowe v. State, supra.
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//blawgsearch75.rssing.com/chan-6519914/article4849-live.html
United States v. Dharni, No. 11-16438 (1-3-14) (Wallace with Fisher and Berzon). This habeas appeal concerns the right to a public trial, specifically, during voir dire. Here, the trial court called in extra jurors because of vacation schedules. The courtroom had limited seating, and so the court asked the family of the defendant and friends to vacate the pews until seats became available. As potential jurors were dismissed, the court never informed the friends and family they could return. The defendant never objected to what the court did. Although the right to a public trial does cover voir dire, the 9th held that the closure was at most trivial, and did not violate the sixth amendment right to a public trial. It would have been better if the court had not asked the family and friends to leave; or to inform them when they could return. However, this did not require a new trial. There also was no IAC for failure to object by defense counsel.
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KY - Former trooper (Jerry Clanton & Stratford Young) fights to get job back after sex abuse accusations
Jerry Clanton & Stratford YoungOriginal Article
01/03/2014
By Amy Stallings and Brooke Hasch
FRANKFORT (WHAS11) - A former Kentucky State Police trooper is fighting to get is job back Friday after he was fired last year.
Jerry Clanton and Stratford Young were let go after accusations of having an inappropriate relationship with a 15-year-old girl. Clanton is in Frankfort Friday appealing his termination.
- So much for innocent until proven guilty!
WHAS11’s Brooke Hasch is at the...
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Michigan Driving While License Revoked (DWLR) Charge - The big Risk
In Michigan, while the charges of driving while license suspended (DWLS) and driving while license revoked (DWLR) violate the same rule of law and are subject to the same criminal punishment, there is a huge difference in what will actually...
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Confrontation is one means of assuring accurate forensic analysis.... cont
One could also contend, as the court in another case, that the calibration and testing records are prepared for reasons other than litigation and therefore should enjoy business record protection. The Green court, in overturning a lower court ruling...
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The aforesaid search was in the first of the two indictments
After trial by jury, a man was convicted on a consolidated indictment of promoting prostitution in the first degree, endangering the welfare of a child, sodomy in the second degree and eleven counts of sodomy in the third degree. He...
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Obama Announces Proposed Rule Changes for Gun Background Checks
The White House today announced two actions pertaining to gun purchases. One is a rule change that expands the definition of a mentally defective person prohibited from possessing a gun. The second is an HHS regulation that expands the information...
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"Bratton Takes Helm of Police Force He Pledged to Change"
From The New York Times: In his first policy message to the city and the police force he now commands, Mr. Bratton said that the tremendous strides the department had made in reducing crime should long ago have given way...
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You have the right to stay out of jail
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The court begins its analysis...cont
Afterward, the man filed an inmate grievance complaint challenging the determination of the officials that he will not become eligible for placement in the program until he is within thirty-six months of his conditional release date. In his grievance complaint, the man asserted that when the department of corrections implied that the inmate must wait until such time, it simply means that the inmate could not be expected to be released until serving two thirds of his sentence. Moreover, the inmate also asserts that he was held twice already for the reason he needs to complete the program before he can be considered for parole.
On the other hand, the department of corrections by implying that the inmate must wait would imply he has no expectation of being released until he has served two thirds of his sentence. The inmate grievance complaint specifically requested immediate placement in the program.
By decision, the superintendent of the correctional facility denied the man's grievance complaint, noting that the central office policy pertaining to the scheduling of inmates into the sex crimes offender treatment program states that moderate to high risk participants are placed in this program within thirty six months to their conditional release date.
The court begins its analysis with an understanding of the benefits associated with the opponents' policy goal of placing criminal sex offenders in the treatment program as close as possible to the times such offenders are expected to be released. The implementation of the said policy goal, however, becomes problematic when a sex offender becomes eligible for optional parole release since the legal power to determine which inmates may be so released resides with the independent state board of parole rather than the department of corrections. Thus the department, the agency responsible for implementing the treatment program with the reasonable policy goal of placing sex offenders in the program as close as possible to the times such sex offenders are expected to be released, has no direct input in the determination as to when a particular sex offender will be granted discretionary parole release.
The man then appeared to three parole boards for discretionary parole release consideration. On all three occasions, the man was denied release with each board specifically noting, along with other factors, the man's lack of sex offender/therapeutic program. More specifically, the parole denial determination stated the man have not been involved in sex offender therapy that could give valuable insight into his sexual related problems. The other parole denial determination stated the man lack therapeutic programs preparing him for release. The last parole denial determination stated the man still have not completed a much needed sex offender program. The man will presumably appear before three more parole boards before the earliest date he might be placed in the treatment program in accordance with the policy at issue in the proceeding.
The court also found that the policy of not placing moderate and high risk sex offenders in the treatment program until they are within thirty-six months of their conditional release dates effectively presumes that such inmates will not be granted discretionary parole release prior to their conditional release dates whether or not they have completed the treatment program. However, the court stated that the presumption may then become a self-fulfilling prophecy when a parole board denies discretionary parole release based, at least in part, upon the failure to complete sex offender program. Domestic Violence was not involved.
The court further state that the potential negative impact associated with the implementation of the policy denying treatment program placement until 36 months prior to conditional release date is particularly severe where the sentence structure produces a significant length time between an inmate's initial parole eligibility date and his/her conditional release date.
While the court recognizes that each of the three parole denial determination issued to date specifically noted, in addition to the man's lack of therapeutic/sex offender program, the serious nature of the multiple crimes underlying his convictions as well as his less than prison disciplinary record, it remains irrational and/or arbitrary and capricious for the opponents to continue to exclude the man from participation in the treatment program while he is denied to the discretionary release by parole board after upon the failure to complete sex offender program.
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Lawyers, Guns & Cannabis: Gun Rights and the Lawful Use of Marijuana
With the medical and recreational use of cannabis being tolerated at many levels of government, there is one constitutional issue that remains undecided. Currently, it is unlawful for and user of illicit drugs to own, purchase, or possess a firearm at both the State and Federal level. Unfortunately, this includes cannabis. Various administrations and courts…The post Lawyers, Guns & Cannabis: Gun Rights and the Lawful Use of Marijuana appeared first on Pelley Law, PLLC | Seattle Criminal Defense Attorney.
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Ringleader of Extensive Mortgage Fraud Scheme Sentenced to Prison
Jose Guzman, 53, Waterford, Connecticut, was sentenced today by Senior U.S. District Judge Alfred V. Covello in Hartford to 51 months of imprisonment, followed by three years of supervised release, for operating an extensive mortgage fraud scheme in eastern Connecticut. According to court documents and statements made in court, Guzman operated a fraudulent mortgage business […]
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Upcoming Site Changes
New Years is always the time I re-assess blogging. Should I continue? Have I been doing this too long? (TalkLeft has been publishing daily for 11 1/2 years.) Should I keep paying hundreds of dollars a month for a dedicated server? Should I pay...
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More Pages to Explore .....
