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Vermont v. Wainwright: Prior DUI Chemical Test Refusals

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In a case that could influence how judges handle DUI penalties in Florida, the high court in Vermont recently ruled that a prior conviction on a DUI charge can serve the dual purpose of criminalizing a blood test refusal and enhancing penalties for subsequent offenses. At issue in the Vermont v. Wainwright and the State v. Wilder cases was the question of whether a refusal of an evidentiary blood-alcohol test by a suspected drunk driver could do both. The trial court had held that no, it could not. However, the Vermont Supreme Court, in considering both cases recently, reversed those earlier decisions, finding that the plain language of state law allowed the same prior DUI conviction to serve as both an element to establishing criminal refusal and to also bolster the punishment for the refusal. Here in Florida, it is generally not considered a crime if a person refuses a chemical test after being arrested for driving under the influence. That doesn't mean there aren't consequences - most namely, an automatic, one-year license suspension. But it's not a crime - unless you have previously been arrested for DUI, at which time you refused to submit to a chemical test and, as a result, had your driving privileges suspended.

NYTimes: The Commish, the 2nd Time Around

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NYTimes: The Commish, the 2nd Time Around by Maureen Dowd, about the new NYPD Commissioner and stop and frisk. I avoid most opinion pieces, but this is interesting about the attitudes of the NYPD in the post-"stop-and-frisk" world and the new Mayor. From page 2: => Read more!

REGJB 2014

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Welcome Back! You've had your holidays, drank too much egg nog, eaten too many cookies and slices of candied nut cake, dealt with client emergencies when no Judge's chambers was answering their phone, and if they did, they didn't want to schedule a hearing until today. But if you're in the REGJB with a case set for trial, then you ignored our second rule of jury trials ((c) Rumpole 2014, all rights reserved) Do not EVER let a case be set for trial the first week of the new year. EVER. Lets examine this closely. There are multiple problems with scheduling a trial for the first week of the new year. First: You spend your holiday working and  preparing for trial while your phone and email is flooded with pictures of friends on the top of the mountain in Aspen or at the top of the water-slide on a cruise ship. It stinks. Second: The prosecutor has spent the holidays thinking about their new years resolutions, one of which more likely than not was to try more cases and ask for tougher sentences. They want that promotion in the new year that their spouse/significant other spent the holidays haranguing them about.Third: The Judge has also spent the holidays thinking about new years resolutions, but most likely their resolution is the opposite of the prosecutor's. "I worked too hard last year. I didn't spend 100K to become a judge just to let some snot-nosed defense attorney keep me in trial until 5pm every day. Why that Judge in Lee country bragged to me at the judicial reception in November that after he gave a defendant thirty years on a third degree felony that he only had to try one more case the whole rest of the year."The Judge, with their addled capacity for logic, decides that by trying a few cases in the first few weeks of the new year, and handing out stiff sentences, that the word will go forth and they will soon be sipping margaritas poolside by 3pm every day, or squeezing in a quick back nine after a long lunch. Whereas the last few weeks of the year are a great time for a defendant to be sentenced, the first few weeks of the new year are a minefield for defendants. The time is best spent preparing for trials in February and March. We speak from experience on this. If you are unlucky enough to be walking the hallways of the REGJB the next few days, listen to what your colleagues are saying about judges and prosecutors and see if we aren't correct. As a practical and beneficial side effect, if you've scheduled a vacation for these next few weeks, the hotel rates are lower, the ski slopes are less crowded, and you can turn the tables on your miserable colleagues and send them selfies of you on an empty ski slope or strolling an empty beach at Cabo. Happy New Year. See You In Court, just not this week. Site Feed

Case Update

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Just over four years ago, in State v. Smith, the Ohio Supreme Court held that the police couldn't search the cellphone of an arrestee without first getting a warrant.  It was a pro-Fourth-Amendment decision from a court that has not been noticeably solicitous toward defendants on that issue, made even more surprising by the fact that many courts which have considered the issue have come to the opposite conclusion.  SCOTUS may weigh in:  on Friday, the Court's first conference of the year, it will consider not one, but two petitions concerning that question. The Court will be resolving one issue which has generated a lot of controversy.  At the end of the month, it will hear oral arguments in Navarette v. California (link is to the SCOTUSblog page for the case).  In 2000, the Court held in Florida v. J.L. that the police couldn't stop a suspect based upon an anonymous tip, unless they were able to corroborate some of the incriminating aspects of the tip.  The courts have nonetheless frequently ignored that when it comes to enforcing drunk driving laws.  That's what happened to Navarette:  the police received an anonymous tip about a possible intoxicated driver, followed the suspected offending car for five miles and, despite not observing any erratic driving, pulled the driver over.  Besides presenting an interesting 4th Amendment issue, the case illustrates that the route to the High Court can have humble beginnings; Navarette's lawyer is a sole practitioner, none of the decisions in Navarette's climb up the appellate ladder were even published, and the State of California didn't deign to file a response to the petition for certiorari.

E.D.Tenn.: Driveway not curtilage

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Defendant had no reasonable expectation of privacy in his driveway from police observation, and it doesn’t qualify as curtilage. When he fled from there, they followed. The driveway area was generally accessible to visitors. United States v. Stitt, 2013 U.S. Dist. LEXIS 182275 (E.D. Tenn. July 15, 2013).* All this is reasonable suspicion: “vehicle's condition, the bill of sale, the registration of the vehicle just before leaving on a trip, and the long-distance, short-duration nature of the trip were all indicators of possible criminal activity.” As to the long distance, the officer searched Google for directions on the route defendant was traveling on his cell phone. Through all this, the officer didn’t unreasonably extend the stop. Klomliam v. State, 2014 WY 1, 2014 Wyo. LEXIS 1 (January 3, 2014).*

Infographic: Your Rights in a Police Encounter

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On this blog and in our practice, we continually discourage our readers and clients from speaking with police without an attorney. You likely know that you have a Fifth Amendment right to refuse to say anything that could incriminate you, but you may not understand when and how you can invoke that right. You may […]

Governor Cuomo Announces [Limited] Medical Marijuana for New York

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By:  Timothy P. FlynnLater this week, New York Governor Andrew Cuomo is scheduled to announce, in his State-of-the-State address, an executive initiative allowing the limited use of medical marijuana under a set of narrow circumstances.  This is surprising given the Governor's opposition to medical marijuana and given New York's long-standing tough drug laws; some of the toughest in the nation.The announcement is also surprising given the perennial attempt made by some of the assemblymen in Albany to pass a medical marijuana bill. While the pot bills seem to shoot through the Assembly, they die in the state senate due to the opposition from a staunch caucus of career anti-pot senators.To get this accomplished, Governor Cuomo, in addition to his change of heart, is utilizing a little known but long-standing provision in his state's public health law.   The proviso, known as the Antonio G. Olivieri Controlled Substance Therapeutic Research Program, allows for the limited use of controlled substances such as marijuana to treat cancer glaucoma, and other diseases "approved by the [New York State Health] Commissioner."  With the Governor's sudden support, as many as 6 hospitals will be selected this year to administer the program and the administrative "red tape" will be dispatched with presumed executive enthusiasm.For the record, Antonio Olivieri was a New York City councilman and state assemblyman who died at the relatively young age of 39 from a brain tumor.  He was an early proponent of the use of medical marijuana, using it himself to alleviate the effects of his chemotherapy treatments until his death in 1980.Of course, this comes as big news in New York, with the initiative touted in an above-the-fold article in Sunday's NYT, which is where the simple minds over here at this law blog first heard of the  policy switch.  According to the NYT, Gotham issued nearly half a million pot-related misdemeanor tickets in the decade from 2002 through 2012.Although this development represents a shift from Governor Cuomo's anti-medical marijuana stance, New York's law is very limited, with tight controls envisioned to prevent abuse.  And let's not forget that Cuomo is up for re-election in November in a state where, at least according to one college poll, 57% of the voters support legalization of medical marijuana.When they get around to implementing this medical marijuana program, New York becomes the 21st state in addition to the District of Colombia to legalize medical marijuana.www.clarkstonlegal.cominfo@clarkstonlegal.com

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New Jersey Works To Curb Sex Trafficking Before Super Bowl

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1-6-2014 New Jersey: Law enforcement agents in New Jersey have redoubled efforts to fight what they worry could be one of the biggest menaces to come with next month's Super Bowl: sex... [[This,an article summary.Please visit my website for complete article, and more.]]

Mom Charged with Felony DUI in Wreck that Killed Children

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Mom Charged for Killing Children in Wreck, Faces Felony DUI Charges A woman has been charged with two counts of felony DUI in a wreck that killed her 4-year-old and 1-year-old daughters. Melissa Patton, 32, was arrested and charged with two counts of felony driving under the influence, as well as driving under suspension. According to troopers, […]The post Mom Charged with Felony DUI in Wreck that Killed Children appeared first on South Carolina DUI Defense Lawyers | Strom Law Firm, L.L.C..

Cook County Department of Corrections inmate visitation suspended due to weather

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       Please be aware that due to the extreme weather, the Cook County Sheriff has suspended inmate visitation at the jail today and tomorrow. The full release can be found at: http://www.cookcountysheriff.org/       It states in part:"Important Cook County Jail Notice Regarding Extreme Weather "Due to the extrem [...]

New York To Allow Limited Medical Marijuana

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New York Governor Andrew Cuomo will announce this week that he is issuing an executive order which will allow seriously ill patients to receive medical marijuana from hospitals. The policy is intended for patients with serious diseases like... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

Chicago DUI Lawyer Knows It Is Cold Outside, But The Courts Are Open

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This Chicago DUI lawyer knows today is one to stay inside.  The windchill levels could make today, and the rest of the week, the lowest recorded temperatures on record for the city of Chicago.  How low you ask?  Schools are closed in the City of Chicago.   Public transportation is delayed.  Non-essential, excluding court personnel, County Services are closed.  Cook County Department of Corrections inmates will not have jail visits prior to Wednesday of this week. Additionally,  if an inmate is slated for release but lacks transportation and/or shelter, the inmate can choose to remain in custody.  But the courts are open.  Inmates will not be transported to any courthouse in Cook County today, except for Leighton, also known as 26th and California.  And yes, that courthouse is literally a couple of doors down from the residence of Cook County Inmates. Now what happens if you have court today and can't appear?  If it is a civil matter, call the courthouse and get connected to your judge's clerk.  Some judges are automatically giving status dates.If you have a criminal matter, this includes misdemeanor courts and traffic courts where there is the possibility of jail as a sentence, you should also call the courthouse, but I've been informed that no warrants will be issued for the accused if she or he is absent today.I will update as I get additional information. The most important thing you can do today is stay safe.Note:  This post also appears today on Chicago Criminal Law Blog.

Implants, Manslaughter and Relevance

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--> A jury convicted Jessica Botelho of manslaughter in violation of New Hampshire Revised Statutes § 630:2, negligent homicide in violation of New Hampshire RevisedStatutes  § 630:3 and reckless conduct in violation of New Hampshire Revised Statutes § 631:3, she appealed.  State v. Botelho, 2013 WL 6797643 (Supreme Court of New Hampshire 2013).  After she was convicted, the trial judge sentenced Botelho “to the New Hampshire State Prison for five to ten years” on the manslaughter conviction, “to a concurrent term of one to three years” on the reckless conduct conviction and “held sentencing in abeyance on the negligent homicide charge, an alternative theory to manslaughter for W.B.'s death, pending appeal.”  State v. Botelho, supra.  I assume the latter statement means negligent homicide is a lesser included offense of manslaughter, which was included to give the jury the option of convicting Botelho on the lesser crime, if they thought that was appropriate. On appeal, she argued, among other things, that the trial judge erred “by admitting into evidence the name and description of a particular website that she visited while leaving her children unattended in her bathtub”.  State v. Botelho, supra.  To understand that argument, you have to understand how, and why, the prosecution arose.  You can read more about the case in the news stories you can find here and here. According to the Supreme Court’s opinion, based on the evidence presented at trial, the “jury could have found the following facts.”  State v. Botelho, supra.  On July 13, 2010, [Botelho] lived in a second-story apartment with her two sons, W.B., who was twelve months old, and T.P., who was two years old. At approximately 4:00 p.m., [she] ran a bath for the two boys. At some point, she left the children alone in the bathtub with the water `stopped’ and approximately two to three inches of water in the bathtub. She then left the apartment and went to an outdoor porch, where she used her laptop computer to connect to the internet. She later told police that T.P. knew how to turn on the bathtub faucet on his own. [Botelho] gave conflicting accounts to police and other witnesses about the nature and length of her computer use, but admitted that she `posted [a] blog’ on a website named `myfreeimplants.com.’ The State described the website, which [Botelho] admitted she had visited since 2007, as a `social networking website where people can make donations for others to get free breast implants.’ A forensic examination of [her] computer . . . documented nearly continuous user activity, exclusively at myfreeimplants.com, from 4:20 p.m. to 5:02 p.m. The majority of entries were associated with viewing and writing blog posts on myfreeimplants.com or sending messages on the website. The report documented only when a user entered, or was directed to, a new web address; thus, several gaps existed in user activity during which the user could have been watching videos, reading online content, or composing messages. After some time, T.P. approached [Botelho] to tell her W.B. was `sleeping swimming. [She] rushed to the bathroom, where she discovered W.B. in the bathtub with the faucet running. [Botelho] gave conflicting accounts to police about whether W.B. was lying on the bottom of the bathtub or floating. She turned off the faucet, retrieved W.B. from the bathtub, and attempted CPR. Unable to find her telephone, she ran downstairs with W.B.--  leaving behind T.P., who had returned to the bathroom -- and asked her downstairs neighbors for help. One of the neighbors called 911 at around 5:00 p.m. while [Botelho] and another neighbor resumed CPR attempts. A neighbor and his friend drove [her] and W.B. to the emergency room, where they arrived at approximately 5:12 p.m. Meanwhile, two neighbors retrieved T.P. from the bathtub, which was half-full but draining, and found that the bathroom floor was covered with water. A detective later determined that it took approximately eighteen minutes to fill the bathtub with the faucet at full volume, and approximately six minutes to drain it. State v. Botelho, supra.  At the hospital, W.B.’s treating physician found he had sustained irreversible neurological injury and brain damage as a result of oxygen deprivation. The doctor explained that this type of injury typically occurs `starting around seven minutes of low oxygen delivery’ following the initial stages of drowning. After a consultation between the doctor, [Botelho] and W.B.'s father, W.B. was removed from life support on July 20, resulting in his death. A medical examiner determined that he had died from complications related to a `near drowning.’ State v. Botelho, supra.  Botelho went to trial, and her attorney was apparently concerned about how the jury would react to the nature of the website she was browsing when W.B. nearly drowned, so, prior to trial, she filed a motion in limine `to exclude all evidence pertaining to the specific web addresses [she] visited during the days leading up to [the] incident,’ including myfreeimplants.com. In so doing, she offered to stipulate that no one else had used her computer on July 13. Following two hearings, the trial court determined `the probative value of such evidence [was] not substantially outweighed by the danger of unfair prejudice’ and denied the motion. The court advised that it would ask a question during voir dire to determine whether potential jurors `[held] personal views about breast augmentation that would prevent [them] from being impartial.’ At trial, the court ordered the redaction of specific references to [Botelho’s] correspondence with men on myfreeimplants.com and noted counsel had agreed to redact two other descriptions of the website that could be construed as sexual in nature. State v. Botelho, supra.  The comment about the probative value of the evidence was a response to Botelho’s argument, under New Hampshire Rule of Evidence 403, that if the evidence came in, it would prejudice the jurors against her. On appeal, Botelho reiterated that argument, claiming that ”the website's identifying information should have been excluded because: (1) it was not relevant; and (2) if it was relevant, any `probative value [was] substantially outweighed by the danger of unfair prejudice.'" State v. Botelho, supra.  The Supreme Court began its analysis of her argument by noting that evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  New Hampshire Rule of Evidence 401.  Evidence that is not relevant is inadmissible. New Hampshire Rule of Evidence 402. Even when evidence is relevant, the trial court may exclude it `if its probative value is substantially outweighed by the danger of unfair prejudice. New Hampshire Rule of Evidence 403. `Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. Unfair prejudice is not . . . mere detriment to the objecting party's case, in which sense all evidence offered is meant to be prejudicial. Rather, the prejudice required . . . is an undue tendency to induce a decision on some improper basis, commonly one that is emotionally charged.’ State v. Jenot, 965 A.2d 1086 (New Hampshire Supreme Court 2008). State v. Botelho, supra.  Botelho argued that the website was not relevant because the `distinguishing characteristic’ of her admissions regarding her use of the site `was how frequently [she] visited the website, not [its] name, content, or purpose.’ . . .Thus, her argument implies, a generic reference to a website with similar features would have been equally explanatory of gaps in user activity. Finally, she argues that the website's identifying information was not relevant because `forensic analysis and [her] own statements . . . establish[ed] that she had used her computer during the relevant period of time,’ and because she had offered to stipulate that no one else had used her computer during that time. State v. Botelho, supra.  As to prejudice, she claimed “jurors were `invited’ to conclude that she solicited money `to advance a selfish interest’ in breast augmentation surgery that presumably was `non-essential [and] sexually-oriented.’” State v. Botelho, supra.  The Supreme Court, though, found that “[u]nder the unique circumstances of this case, we need not determine whether admission of the website information was error under New Hampshire Rules of Evidence 401 and 403, because even if it was erroneous, the error was harmless.” State v. Botelho, supra.  As Wikipedia notes, a harmless error, basically, is one that does not warrant a new trial. Or, as this court explained, “[a]n error may be harmless beyond a reasonable doubt if the alternative evidence of the defendant's guilt is of an overwhelming nature, quantity, or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt.”  State v. Botelho, supra.  The Supreme Court then found that the alternative evidence of Botelho’s guilt was overwhelming. . . . Setting aside the names and descriptions of the particular websites that she visited, unchallenged forensic evidence demonstrated nearly continuous online activity from 4:20 p.m. to 5:02 p.m. Although she gave conflicting accounts about the nature and length of her computer use, [Botelho] admitted in a recorded police interview that she used her computer, located on her porch, to `post[ ][a] blog’ while her young children remained unattended in a bathtub containing water. The risk her children would drown or suffer serious injury in this situation was `substantial and unjustifiable. New Hampshire Revised Statutes § 626:2. [Botelho’s] conflicting, and self-serving, statements about the amount of time she spent on the computer do not diminish the overwhelming nature of the evidence that she left her children unattended for an extended period of time. In addition to the computer forensic evidence, the water level in the bathtub before and after W.B.'s near drowning was strong circumstantial evidence that W.B. and T.P. spent an extended period of time there alone. [Botelho] stated that the water was `stopped’ when she left the bathroom, and that, upon her return, she turned off the faucet when she found the water running. Two neighbors testified that, by the time they retrieved T.P. from the bathtub several minutes later, the bathtub was draining but was still half-full, and the floor was wet. The evidence suggests the bathtub overflowed with water either before or shortly after [Botelho] retrieved W.B. Even if T.P. had turned on the faucet immediately after [she] left her children alone in the bathtub, and even if T.P. again turned on the faucet immediately after [she] went downstairs with W.B. to get help, [Botelho] would have had to leave her children unattended for a significant period of time in order for the bathtub to fill up, overflow, and begin to drain. State v. Botelho, supra.  The court then parsed how these facts established Botelho’s guilt of the relevant crimes: The evidence showed [Botelho] was `aware of and consciously disregard[ed]’ the risk to her children. New HampshireRevised Statutes § 626:2. As [she] concedes in her brief, `[t]he parties did not take issue with the proposition that young children should not be left alone in a bathtub.’ [Botelho] told police she limited the water level to two to three inches, indicating she understood the risk to her children of drowning in the bathtub. Additionally, she admitted to knowing that T.P. could operate the faucet on his own, further increasing the risk. This evidence, combined with the evidence of the extended period of time during which [Botelho] left her children unattended, established both that she was `aware of and consciously disregard[ed]’ this risk, and that her disregard `constitute[d] a gross deviation from the conduct that a law-abiding person would observe in the situation.’ New Hampshire Revised Statutes § 626:2. Finally, the evidence showed that [Botelho’s] reckless conduct `cause[d]’ W.B.'s death, New Hampshire Revised Statutes § 630:2. The medical examiner testified that W.B. died from complications resulting from near drowning, and [his] treating physician testified that W.B.'s injuries evidenced near drowning. The evidence also showed [Botelho] placed T.P. `in danger of serious bodily injury,’ New Hampshire Revised Statutes § 631:3, when she left him in the bathtub with W.B. Moreover, testimony from neighbors and [her] own admissions demonstrated that T.P. remained exposed to the risk when [she] left him alone in the bathroom while seeking help for W.B. in another apartment.    State v. Botelho, supra.  Finally, the court found that references to myfreeimplants.com throughout the trial were inconsequential in relation to the strength of the evidence of guilt. . . . The majority of references to myfreeimplants.com occurred during a computer forensic expert's testimony, which focused on the length and nature of [Botelho’s] computer use during the relevant time period rather than the specific content of the website. We are persuaded that the State's choice to establish [her] computer use with specific references to myfreeimplants.com, rather than generic references to an unnamed website, had no effect on the verdict.  State v. Botelho, supra.  For these and other reasons, the court affirmed Botelho’s convictions and sentences. State v. Botelho, supra. 

8 Indicted for Running Alleged Straw Buyer Scheme

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Eight people were indicted for their roles in a $40 million mortgage fraud conspiracy involving dozens of properties along Florida’s Gulf Coast. Named in the 45-count indictment are: Ileana E. Osborne, 44, Santa Rosa Beach, Florida; Kyle F. Conrad, 63, and Linda K. Conrad, 62, both of Hartville, Ohio; John J. Dubay, 48, Delray Beach, […]

Double Jeopardy In Sex Crimes Prosecutions In New York

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Sometimes, a defendant in a rape case has been tried on one charge arising out of the incident and then is charged in a separate case with the same crime arising out of the same case. Is that constitutional under the Double Jeopardy clause of the US Constitution that bars the second prosecution for the […]

Officials Aim To Crack Down on Sex Trafficking at Super Bowl

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The up’s and down’s of a football game can cause people to act irrationally. We’ve already heard stories of how domestic violence increases after a loss, and we’ve seen some people get a little carried away when rooting for their favorite team. While law enforcement officials are trained to deal with some of the more common occurrences […]The post Officials Aim To Crack Down on Sex Trafficking at Super Bowl appeared first on The Appelman Law Firm Law Blog

The Loaf

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While you were ringing in the new year with a traditional helping of black-eyed peas, some inmates were “enjoying” another day of nutraloaf. As this recent NPR story explains, “[i]n many prisons and jails . . . punishment can come in the form of a bland, brownish lump. Known as nutraloaf, or simply ‘the loaf,’ […]

"Sex offender seeks admission to Kentucky bar"

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The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures. Here are the details, followed by a...

Verfahren wegen Untreue gegen Bürgermeister eingestellt gem. § 170 Abs. 2 StPO eingestellt

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Die Staatsanwaltschaft hat das Ermittlungsverfahren wegen Verdachts der Untreue (§ 266 StGB) gegen den scheidenden Noch-Bürgermeister von Bisingen mangels hinreichenden Tatverdachts eingestellt. Ihm wurde vorgeworfen, dass er zu Unrecht seine Ehefrau höherstufen ließ und sie dadurch ein höheres Entgelt für ihre Tätigkeit bei der Stadt erhielt. Umfangreiche Ermittlungen der Polizei und Staatsanwaltschaft deckten auf, . . . → Read More: Verfahren wegen Untreue gegen Bürgermeister eingestellt gem. § 170 Abs. 2 StPO eingestelltÄhnliche Beiträge:Verdacht auf Bestechung und Untreue: Razzia im RathausEinstellung im Fall Wallraff nach § 153a StPOKeine Ermittlungen wegen Untreue gegen Bischof Tebartz-van…Sexueller Missbrauch von Kindern: Verfahren gegen Priester…Verfahren wegen Beleidigung eines Polizeibeamten eingestellt
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