Is a plea bargain in your best interest?
A trial is a time consuming, expensive exercise for the State. It consumes the energy of the judge, the court staff, eight jurors, the arresting and assisting law enforcement officers, expert witnesses and any number of lay witnesses who may testify. As an example of the scale of the criminal justice system, in 2011, nearly 121,000 criminal and traffic misdemeanor offenses were filed in the Franklin County Municipal Court. This court is [Read the full post. . .]
“Plea Bargain” Is Not A Dirty Word
↧
↧
S.D.N.Y.: Detailed “speaking” indictment could be relied on in issuing SW, too; "all records” seizure was valid
Defendant ran a law firm indicted for immigration fraud in presenting over 200 false asylum applications falsely alleging persecution. The indictment was a detailed “speaking” indictment that set out the scheme. The USMJ issuing a search warrant for the law firm’s records could rely on the indictment, too. The question is nexus: Does the indictment shows probable cause to believe a crime occurred, but does it also show nexus to the place to be searched? Here it did. But, there’s more: the remainder of the affidavit clearly shows probable cause, too. The search warrant authorized seizure of virtually every record in the law firm, but it was supported by the affidavit, so the search was not overbroad. United States v. Liu, 2014 U.S. Dist. LEXIS 3520 (S.D. N.Y. January 10, 2014).
There was probable cause for defendant’s stop for a traffic offense, and there was reasonable suspicion for stopping her for interstate transportation of a minor for sex. Defendant then consented to a search of the car, and evidence of prostitution was found. United States v. Hernandez, 2013 U.S. Dist. LEXIS 183203 (N.D. Ga. August 12, 2013).*
↧
Listen to Mike Allen on 700 WLW this morning at 9:05
This morning Mike will be on 700 WLW discussing the Felony indictment of Hamilton County Juvenile Court Judge Tracie Hunter. Listen as he talks about this controversial subject.
↧
Miss. Supreme Court reverses CP conviction after trial court denied indigent defendant money for expert witness
In Lowe v. State, 2011-CT-00762-SCT (Miss. 2013), the Mississippi Supreme Court reversed and remanded for a new trial the conviction of a man for child pornography crimes because the trial court had denied the defendant's request for funds to hire an expert to help refute the testimony of the state's expert.The defendant was convicted of five counts of exploitation of a child after child pornography was discovered on his computer. He had been found to be indigent, and the trial court appointed him counsel.At trial, the state planned to use a computer forensics expert to testify as to his examination of the defendant's computer. The defendant sought funding for his own expert to also examine the computer, suggesting that testimony about the computers user accounts would help in his defense. The trial court ultimately denied his request.Trial testimony indicated that there were other users on the computer, but the government expert concluded that it was not likely that anyone other than the defendant had downloaded the images.The state Supreme Court reversed, finding that "the circuit court deprived Lowe of a fundamentally fair trial by denying him the assistance of a computer forensics expert when the State relied exclusively on its own expert to identify Lowe as the perpetrator of the offenses charged."
↧
D.Idaho: Violation of computer search 180 day time limit warranted suppression
The search warrant had a 180 day computer search time limit that was violated. The government concedes suppression. United States v. Swenson, 2014 U.S. Dist. LEXIS 3286 (D. Idaho January 8, 2014).
Defendant was sort of separated from his wife, but he spent about half the time there in the last month. “Defendant's status is perhaps most accurately characterized as straddling the line between co-occupant and an overnight guest. At the very least, he was lawfully in the apartment as an overnight guest on the night in question. In light of the above body of Fourth Amendment precedent, I find that Defendant therefore had a constitutionally protected reasonable expectation of privacy.” On the question of consent, the court credits the officers. “I find the testimony of Ms. Bradley-Alcorn to be almost wholly incredible. In order to credit her version of events, I would have to accept a level of situational awareness on the part of the officers that borders on prescience.” United States v. Alcorn, 2014 U.S. Dist. LEXIS 3918 (W.D. Va. January 13, 2014).*
↧
↧
Can I be Found Guilty of Virginia DUI if I Wasn’t Driving?
Unfortunately yes. Virginia law prohibits driving or operating a motor vehicle, engine or train while you’re intoxicated or under the influence of any drugs, alcohol or other substances. But what does that exactly cover? As I discussed in other articles and videos about operating a vehicle, the “operation” word is quite broad under Virginia law. […]
↧
TN: Defendant abandoned house that was finally condemned; no REP in child porn found inside months later
Defendant abandoned his house that was being condemned by the city for being in severe disrepair. The door was off, and it was falling apart. When the city came to tear it down, they removed what was of any use inside and gave it away and destroyed the rest. The process took month. They found child pornography in the house. State v. Ledford, 2014 Tenn. Crim. App. LEXIS 20 (January 13, 2014):
=> Read more!
↧
El Paso Sheriff still seeking rapist deputy, fugitive, ten years after flight
The El Paso County Sheriff has PR campaign dubbed "Manhunt Mondays" in which it seeks the public's help locating fugitives. This week the target is a former sheriff's deputy who's been on the lam for more than a decade. Reported the El Paso Times: Peter CalzadaPeter Calzada, 54, has been missing since 2003 when he skipped out on his sentencing in a federal case.Calzada and another former sheriff's deputy, Michael Duran, pled guilty to kidnapping a woman who was stranded and raping her while they were on duty in 1997.Deputies have received numerous tips on Calzada's location since he went missing, but have been unable to catch him.In 2009 it was reported that Calzada gained weight, grew his hair long and was teaching English deep in Mexico.In 2012, a person called a tip that Calzada was in a Arizona airport, but quickly left after the person saw him.There have even been sightings of Calzada in the Borderland area, but he has eluded capture despite being featured on Manhunt Monday every year.
↧
Mental Competency To Stand Trial in Maryland Criminal Cases
In a recent case, the appellate court looked at questions of mental competency in the case of a criminal conviction. The case arose from the defendant’s alleged stabbing and killing of an adult male. The victim, who was dying of cancer and who had been recently beaten on an earlier occasion, was discovered by a […]
↧
↧
What Can Happen If You File A False Tax Return?
Filing a false tax return in New York is a common crime on federal and state levels. We’ll talk about the federal crime of filing a false tax document under section 7206. In order for the government to convict one of this crime, they must prove the following elements: that (1) a tax return was […]
↧
Texas' review of faulty hair and fiber forensics underway
Jordan Smith at the Austin Chronicle has a brief story (Jan. 13) on the review of potentially faulty forensics in older cases using hair microscopy before the advent of DNA, a topic addressed at last week's quarterly Texas Forensic Science Commission. It opens: The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.Texas' planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers. Many of the Texas' hair examiners were trained by the FBI, so the state review makes sense, according to the Innocence Project of Texas, which is among the stakeholders collaborating with the FSC on the review. Indeed, the FSC noted this in its most recent annual report. "The FBI has also indicated that it trained many microscopic hair analysts in state and local crime laboratories, including some laboratories in Texas," reads the report. "Of course, this does not necessarily mean that state and local analysts made similar [scientific] overstatements" as did the FBI analysts at issue in the federal review. Still, as it is with that review, Texas' inquiry will focus on older cases, because microscopic hair analysis was more common in the 1980s and 1990s, before the rise of DNA testing. ...Twenty labs across the state do hair analysis, FSC general counsel Lynn Robitaille Garcia told the commissioners, including 12 Department of Public Safety labs and eight additional public labs (generally county or police department crime labs). The labs are currently in the process of going back and "identifying hair cases" to submit for possible review, she said. So far, four labs – including the Southwestern Institute of Forensic Sciences in Dallas and the Bexar County lab – have supplied lists of cases, she said, totaling "a few dozen" where "positive association" was made between a defendant and crime scene evidence. Garcia said a database review of appeal court decisions that mention hair analysis yielded a list of some 85 cases. Those cases will be sorted by jurisdiction and supplied to county prosecutors and to participating labs to help them cull through relevant records.My colleague Nick Vilbas from the Innocence Project of Texas told the FSC that, so far, they've identified 20-25 names out of those 85 cases who've contacted IPOT in the past requesting help to prove their innocence, and they haven't finished vetting the list. Without exculpatory DNA evidence, there was little IPOT could do for those folks in the past. But between the FSC review and Texas' new junk science writ that became law September 1st, the landscape has changed. So there's a decent chance this undertaking may result in viable innocence claims and future exonerations, though right now the process remains in the early stages.Between changes to the habeas corpus statute, the new focus on hair-and-fiber analysis and the ongoing arson review, Texas has lept to the forefront nationally among states confronting junk science that may have resulted in wrongful convictions. Not many years ago, it would have been hard to envision the day when one could say that with a straight face, but there it is.See related Grits posts:Federal hair microscopy review should be replicated at the state levelTexas should conduct review of hair and fiber forensics comparable to fedsHair and fiber review needn't center on death penalty debateFaulty hair forensics used to convict executed defendantHair analysis technique that was 'judicially accepted for decades' called 'highly unreliable' 'White paper' suggests systemic reforms to respond to mass forensic errors
↧
Two professorial perspectives on the USSC's proposal to reduce all federal drug sentences
In my view, last week brought one of the very biggest (and yet, so far, one of the least discussed) tangible developments in federal sentencing reform in the past few years. Specifically, as reported here, the US Sentencing Commission voted...
↧
Report: Providing counsel at bail hearings would lessen Harris County jail costs
A new report from the Texas Fair Defense Project makes the case for providing appointed counsel to indigent defendants at bail hearings to reduce unwarranted pretrial detention. Harris County, in particular, spends nearly a quarter-million dollars per day to lock up defendants who've not yet been convicted and are awaiting trial. Find TFDP's press release announcing the new publication below the jump.New Report Makes Case for Providing Defense Lawyers at Harris County Bail Hearings in Order to Reduce Costs of Unnecessary Pretrial DetentionAUSTIN, TX – The Texas Fair Defense Project today released a report that details how Harris County’s reliance on bail schedules, limited use of personal bonds, and practice of conducting bail hearings without the participation of defense counsel lead to the unnecessary pretrial detention of poor people solely because they cannot afford financial bail.In the report, Depenalizing Poverty: A Proposal for Improving Harris County Bail Policies, TFDP recommends that defense counsel be provided to poor people at initial bail hearings in order to reduce the personal and financial costs associated with incarcerating people who have not been convicted of a crime. Almost 60% of the inmates in the Harris County Jail are awaiting trial. Detaining these individuals costs Harris County taxpayers over $234,000 per day.Under the Texas Constitution, almost every person accused of a crime is entitled to have a judge set bail to secure their appearance in court while charges are pending. Individuals who cannot afford to post bail in the amount set in their case remain incarcerated prior to trial, even if they are charged with a relatively minor offense and pose little risk to the community.Although federal and state law requires courts to consider an individual’s financial resources when setting the amount of bail, in order to avoid the pretrial detention of people solely because they are poor, magistrates in Harris County set bail using a standardized bail schedule that does not consider an individual’s ability to pay. Bail is set at hearings where poor people appear alone in front of a magistrate and prosecutor, before a defense lawyer is appointed to represent them.“Defense attorneys can help arrested individuals understand the factors relevant to a bail determination and present evidence supporting a lower bail amount or release on personal bond,” said Susanne Pringle, TFDP Staff Attorney and author of the report.In a study conducted in Baltimore, defendants with attorneys at their bail hearings were more than twice as likely to be released on personal bond than were defendants without attorneys. The average bail for represented defendants who did not qualify for personal bond was $500 less than the average bail set for defendants who didn’t have defense counsel.“Having a defense lawyer at your bail hearing can determine whether you keep your freedom while you face a criminal accusation, or spend months in jail before you’ve been convicted of any crime,” said Pringle.Pretrial detention has consequences long after the pretrial period. People who can’t afford to post bond may lose their jobs, housing, and custody of their children. Multiple studies also show that individuals who are detained prior to trial are more likely to be convicted and, if convicted, to receive longer sentences than individuals who can afford to post bond.“People in Harris County are being convicted of crimes because they're poor,” said Andrea Marsh, TFDP’s Executive Director. “They’re in pretrial detention because they're poor, and they're more likely to be convicted because in they’re in pretrial detention.” The Texas Fair Defense Project (TFDP) is a nonprofit organization that works to improve the fairness of Texas’s criminal courts and ensure that all Texans have access to justice. TFDP focuses on improving the public defense system and challenging policies that create modern-day debtors’ prisons filled with poor people who cannot afford to pay commercial bond fees and post-conviction fines and costs.TFDP won a U.S. Supreme Court victory in Rothgery v. Gillespie County, a 2008 decision holding that the constitutional right to counsel attaches at the initial bail hearing held within 48 hours of an individual’s arrest. TFDP also recently settled a civil rights lawsuit that challenged practices that denied poor people the right to counsel in pretrial criminal proceedings in Williamson County, after receiving a favorable ruling from the Texas Supreme Court in Heckman v. Williamson County.A copy of Depenalizing Poverty: A Proposal for Improving Harris County Bail Policies can be obtained at http://bit.ly/1j5uhZc.Additional information about TFDP is available at www.texasfairdefenseproject.org.
↧
↧
Booking Fees
The Seventh Circuit just ruled that the $30 booking fee charged to each arrestee in an Illinois town is constitutional. Markadonatos v. Village of Woodridge, __ F.3d __, 2014 WL 60452 (7th Cir. Jan. 8, 2014). I had never heard of booking fees and decided to learn a bit more about them, including where they […]
↧
Deal with the Devil? DEA allegedly overlooked Sinaloa cartel drug smuggling for intel on rivals
Simultaneously shocking and also utterly unsurprising. According to a report by Business Insider:An investigation by El Universal found that between the years 2000 and 2012, the U.S. government had an arrangement with Mexico's Sinaloa drug cartel that allowed the organization to smuggle billions of dollars of drugs while Sinaloa provided information on rival cartels.Sinaloa, led by Joaquin "El Chapo" Guzman, supplies 80% of the drugs entering the Chicago area and has a presence in cities across the U.S. There have long been allegations that Guzman, considered to be "the world’s most powerful drug trafficker," coordinates with American authorities.But the El Universal investigation is the first to publish court documents that include corroborating testimony from a DEA agent and a Justice Department official.See the full BI story for more details. My Spanish isn't good enough to closely parse the El Universal story, and the Google translate version is pretty raw, so I'm looking forward to followup reports. Certainly, it's not uncommon for law enforcement to cut deals with criminals for information. But this story alleges the US conspired with the Sinaloa cartel at the very highest levels. A few years ago, American intelligence officials were telling the press that Guzman and the Sinaloa cartel appeared to be "winning" the bloody feud with its rivals for control of smuggling routes into the U.S.. What they didn't say was that Sinaloa was "winning" because the US government was helping them!
↧
MacLean on Capital Punishment
Charles E. MacLean (Indiana Tech Law School) has posted Foreword: Capital Punishment: Iterating Toward Perfection, When Perfection is Unattainable (Lincoln Memorial University Law Review, Vol. 2, No. 1 (2014 Forthcoming)) on SSRN. Here is the abstract: I was invited to...
↧
You be the federal judge: what sentence should the Beanie Babies billionaire get for tax evasion?
As reported in this short AP article, today "the billionaire creator of Beanie Babies is in a Chicago federal courtroom for his sentencing on a tax evasion charge." Here is more: H. Ty Warner could get up to five years...
↧
↧
Critics Say ‘Voluntary’ Traffic Survey Feels Compulsory
Since 1973, the National Highway Transportation Safety Administration (NHTSA) has conducted a periodic National Roadside Survey in which drivers are stopped, asked questions about drug and alcohol use, and given a breathalyzer test. The federal agency has conducted roadside surveys 1973, 1986, 1996, 2007, and 2013. However, in its last two iterations, contractors have asked […]
↧
"Congress should scrap drug sentencing 'enhancements'"
The title of this post is the headline of this notable new commentary by Jamie Fellner published earlier this week in The Hill. (Ms. Fellner is senior advisor to the U.S. Program of Human Rights Watch and author of this...
↧
M.D.La.: Failure of govt to rebut defense testimony of coerced consent means suppression granted
The defense argued during a suppression motion that the officers coerced the signature of defendant’s wife on the consent form, and put on testimony to that effect which the government never rebutted. After the motion to suppress was granted, the government filed a motion to reconsider, and it does not get “another bite at the apple” to put on witnesses. The government failed in its burden of showing that consent was voluntary the first time, and it should have done it then. United States v. Foster, 2014 U.S. Dist. LEXIS 4569 (M.D. La. January 8, 2014).
A state judge issued a warrant to track defendant’s cell phone, and it was issued with probable cause. United States v. Rodriguez, 2014 U.S. Dist. LEXIS 3589 (D. Or. January 10, 2014).*
The government shouldn’t have filed its response to the motion to suppress under seal, and it is unsealed. A motion to seal should be filed first. Defendant’s Franks challenge is rejected. The fact the CI would be motivated by money and therefore should not be believed is not a Franks issue. Defendant was a gambler with the money he skimmed in a tax evasion scheme, and failing to include his winnings in the affidavit for search warrant isn’t material or reckless. There was probable cause. United States v. Suliman, 2014 U.S. Dist. LEXIS 4446 (D. Nev. January 13, 2014).*
↧
More Pages to Explore .....
