If you receive a ticket or Virginia Uniform Summons, you need to double check all the information on the summons. Errors on the ticket could be a defense that we could use in court for your case. This is a good reason for you to give me a call to discuss the specifics of your […]
The Officer Wrote the Wrong Driver’s License Number, Zip Code and Speed Limit on my Ticket. What Should I do?
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The ADA, the Drug Court Coordinator and Embezzlement
After “Angela Marie Marcum, James Michael Miller, and William Harbert Layden Jr. were charged in the District Court of Pittsburg County . . . with Conspiracy to Defraud the State of Oklahoma in violation of” 21 Oklahoma Statutes § 424, they all “moved to suppress evidence relating to text messages.” State v. Marcum, 2014 WL 309486 (Oklahoma Court of Criminal Appeals2014). According to the news story you can find here, this is how they came to be charged: A second indictment against Pittsburg County's drug court judge accuses him of lying to the state grand jury four times. . . . An indictment unsealed Friday, Sept. 30, 2011 in Pittsburg County accuses Special Judge William H. Layden Jr., Assistant District Attorney James Michael Miller and former drug court coordinator Angela Marcum of attempting to obstruct an investigation of alleged embezzlement within the county's drug court program. . . . The first indictment against [the judge] was filed Friday at the courthouse in McAlester. He and two others are accused in that felony case of conspiring to impede an investigation into missing drug court funds. The judge has denied wrongdoing. . . . The drug court program was instituted in Oklahoma in 1995. The purpose is to redirect drug offenders into a structured, judicially monitored substance abuse treatment program rather than sending them to prison. Grand jurors reported finding a drug court in Pittsburg County that had run amok. The grand jury said drug court participants there had to pay $4,500 — a total `greatly in excess’ of the fee provided by law. Participants also were paying the drug court administrator rather than the court clerk. The grand jury in May indicted the former administrator of the Pittsburg County drug program. You can, if you are interested, find the indictment against all three here. As noted above, all moved to suppress certain evidence “relating to text messages.” State v. Marcum, supra. This opinion explains that Miller was an assistant district attorney in Pittsburg County and Marcum was the drug court coordinator responsible for collecting money. Miller and Marcum were romantically involved. The Pittsburg County District Attorney told Miller the [Oklahoma State Bureau of Investigation] was in town investigating suspected embezzlement. Shortly after that conversation, Miller was seen in the alley behind the courthouse, texting quickly. Miller sent Marcum text messages from his personal cell phone, and received text messages from her on his personal phone. . . . The State sought to admit Exhibit 4, records of the U.S. Cellular telephone company of texts to and from Miller's cell phone, which were obtained pursuant to a search warrant. The State neither searched nor obtained records from Miller's actual cellular telephone. The defendants moved before trial to suppress these records. Miller took the lead in making and arguing this motion. He argued that his 4th Amendment right against search and seizure was violated by seizure of the U.S. Cellular business records concerning Miller's texts. He claimed the search warrant was invalid because the affidavit supporting it was insufficient. Marcum joined this motion. State v. Marcum, supra. The trial judge granted the motion to suppress, in an order that “describe[d] the messages as `salacious and incriminating.’” State v. Marcum, supra. In granting the motion, the judge “found that both Marcum and Miller had a reasonable expectation that their texts would be private, and had standing to urge a motion to suppress.” State v. Marcum, supra. The prosecution appealed that decision, so this is the issue the Court of Appeals addresses in this opinion. State v. Marcum, supra. As Wikipedia explains, and as I have noted in prior posts, in Katz v. U.S., 389 U.S. 347 (1967), the U.S. Supreme Court held that, for a 4th Amendment “search” to occur, the person at whom the activity in question was directed had to have had a “reasonable expectation of privacy” in the place or thing searched. As I have noted, and as Wikipedia explains, to have such an expectation the person (i) must subjectively believe the thing/place is “private” and (ii) society must accept that expectation of privacy as objectively “reasonable.” So, the trial judge found that the texts at issue in this case were “private”, as to Marcum and Miller. With regard to the issue of standing, as Wikipedia explains, standing in law is basically the requirement that, in order to assert a legal protection, such as the 4th Amendment, the person who seeks to invoke the protection must be able to show that he/she personal suffered a violation of that protection. So, as I explained in an earlier post, to have “standing” to raise a 4th Amendment argument, the person must be able to show that his or her 4th Amendment rights were violated by law enforcement conduct. Since the judge found Marcum and Miller both had a 4thAmendment expectation of privacy in the texts at issue, they had standing to challenge the search. The Court of Appeals began its analysis of Marcum’s and Miller’s argument on appeal by noting that the search warrant at issue was directed, not to any defendant's cell phone, but to the business records of the U.S. Cellular phone company, a corporation, which kept a record of the texts in the regular course of business. The U.S. Cellular records contained text messages sent from and received by Miller's personal cell phone. The State argued the defendants had no standing to contest the search warrant. The defendants argued that they had a protected privacy interest in the U.S. Cellular records of the text messages under the 4th Amendment. . . . [T]he threshold issue . . . is quite narrow: does Marcum have a 4th Amendment reasonable expectation of privacy in the U.S. Cellular records of the texts from Miller's phone account, including messages Miller sent to her and replies she sent to Miller's phone, which were received by Miller? That is, the issue is not whether Marcum has an expectation of privacy regarding the contents of text messages from her own phone, or even regarding phone company business records kept for her phone account. State v. Marcum, supra. The Court of Appeals noted that it has not previously determined whether there is a 4th Amendment right to privacy under these circumstances. Generally, `the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time of [ sic ] the subpoena is issued.’ U.S. v. Miller, 425 U.S. 435 (1976).It is settled that there is no reasonable expectation of privacy in call records of phone numbers kept by a telephone company. Smith v.Maryland, 442 U.S. 735 (1979). Here, the records consist of more than account numbers, and include the contents of the text messages themselves. Also, . . . Marcum is not the account holder on the U.S. Cellular account named in the warrant. As the following discussion shows, no published case from any other court has addressed precisely this issue. . . . State v. Marcum, supra. The court explained that in suppressing this evidence against Marcum, Vassar relied on a Missouri district court of appeals case, State v. Clampitt, 364 S.W.3d 605 (Missouri Court of Appeals 2012). In Clampitt, the prosecutor obtained text message content, for the phone of the account holder himself (not, as here, a person who received and sent messages to the account holder), from a U.S. Cellular account through an investigative subpoena, not a warrant. Clampitt discussed whether a person had a reasonable expectation of privacy in the contents of text messages where the contents were in the possession of a third party, a telephone company. Relying on a Sixth Circuit case discussing email accounts, U.S. v. Warshak, 631 F.3d 266 (U.S. Court of Appeals for the 6th Circuit 2010), the Missouri court noted that mere third party access to subscribers' accounts did not automatically extinguish a reasonable expectation of privacy. State v. Marcum, supra. The Court of Appeals noted that the Clampitt case and “[a]ll the cases from other jurisdictions” that were cited by the parties and/or that it reviewed, lack an important feature of this case: they all concern the reasonable expectation of the person who holds the account, owns the phone, or is personally given the phone for his use by his employer. Marcum is not that person. Marcum's strongest claim to an expectation of privacy is in the texts she sent to Miller's phone, which were received by him and recorded on Miller's account records. This is similar to mailing a letter; there is no expectation of privacy once the letter is delivered. See, e.g., U.S. v. Gordon, 168 F.3d 1222 (U.S. Court of Appeals for the 10th Circuit 1999). It is like leaving a voice mail message, having the recipient receive and play the message, and then claiming the message is private. In an unpublished opinion the Eleventh Circuit found the defendants had no reasonable expectation of privacy in messages they had sent to or received from a third party, because once the messages were both transmitted and received, the expectation of privacy was lost. U.S. v. Jones, 2005 WL 2284283 (U.S. Court of Appeals for the 11th Circuit 2005). The Minnesota Supreme Court found that a defendant had no reasonable expectation of privacy in cell phone records procured from a phone company where, although he possessed and used the phone, he was not the account holder and had no relationship with the phone company. State v. Griffin, 834 N.W.2d 688 (Supreme Court of Minnesota 2013). . . . [A] Texas appellate court has found a defendant had no reasonable expectation of privacy in a telephone company's cell phone records for the accounts of co-defendants. Anderson v. State, 2013 WL 1819979 (Texas Court of Appeals 2013). . . . State v. Marcum, supra. The Court of Appeals therefore explained that Marcum has not demonstrated a reasonable expectation of privacy in the records seized from U.S. Cellular for Miller's phone account. This Court adopts the reasoning of the courts which have concluded that there is no expectation of privacy in the text messages or account records of another person, where the defendant has no possessory interest in the cell phone in question, and particularly where, as here, the actual warrant is directed to a third party. The trial court abused its discretion in finding that Marcum had a reasonable expectation of privacy in the records of text messages sent from and received by Miller's phone, and kept by U.S. Cellular. . . . State v. Marcum, supra. The Court of Appeals therefore reversed the trial judge’s granting the motion to suppress insofar as it concerned Marcum, and remanded the case to for further proceedings. State v. Marcum, supra.
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Teachout on Corruption and Quid Pro Quos
Zephyr Teachout (Fordham University School of Law) has posted McCutcheon and the Meaning of Corruption: Not All Quid Pro Quos are Made of the Same Stuff on SSRN. Here is the abstract: This Article critiques the use of quid pro...
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Georgia doctor convicted of criminal charges related to pill mill
Prescription painkillers can be wonderful aids for patients who are truly in need. However, due to their highly addictive nature, illegal distribution of these drugs is a serious and pressing social issue. Recently, a Georgia doctor who was arrested in...
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Mandatory Auditor Rotation is Dead
Almost two years ago, I wrote about a PCAOB proposal that would require companies to rotate auditors every 5 to 10 years. The theory was that forcing companies to change auditors regularly would make audits better, because fresh eyes on the books every few years would mean a more skeptical audit. My position was that […]
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CA5: Being in the “Mexican Mafia” is both PC and exigent circumstances for entry
Officers did a knock-and-talk and defendant answered the door. They knew he was in the “Mexican Mafia.” They asked to enter, and he said that he couldn’t give permission because it wasn’t his house; the owner was in the back. He went to get the owner shutting the door. The officers pushed the door open and followed him in. “The agents also recognized Albarado from past drug investigations, and knew of a separate tip that Albarado was involved with the Mexican Mafia. We find that once the agents spoke with Albarado, they had probable cause to believe a crime was being committed.” The entry was with exigent circumstances. United States v. Albarado, 2014 U.S. App. LEXIS 2284 (5th Cir. February 6, 2014):
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Bully Bexar DA strikes back against lawyer who alleged sexual dalliance
In seeming retaliation for airing her own dirty laundry, Bexar County DA Susan Reed's office is seeking a contempt finding against prominent attorney Michael McCrum, a former federal prosecutor and prominent Democrat, alleging he told a witness under subpoena to "get lost for a while" to avoid testifying against one of his clients last fall.Among the courthouse crowd, however, it's widely believed that Reed's latest salvo against McCrum smacks of retaliation. Last summer, McCrum alleged bias on the part of the Bexar DA in a successful motion for a new trial on behalf of dermatologist Dr. Calvin Day, who was accused of sexually assaulting a patient. McCrum alleged in court documents that Susan Reed engaged in a one-night stand in Las Vegas with Dr. Day and that prosecutors withheld Brady material about a key witness. Reed denied the liaison to the press, which dutifully downplayed the specifics, but Day testified to the matter under oath and passed a polygraph. The court granted him a new trial.Here's a copy of McCrum's motion on behalf of Dr. Day that some think sparked this latest counterattack. Check it out, it's quite a read. Grits would like to obtain a copy of the transcript from the hearing on that motion to get the whole story, but it's a tad expensive and, as it turns out, it's been a while since I've asked readers for donations so blog funds are running low. If you'd like to contribute to Grits following up on this, donate via the Paypal button in the right-hand column or email me at shenson@austin.rr.com and I'll give you an address to send a check.Also last year, McCrum accused the DA's office of witness tampering in a case involving alleged misconduct by two fired Sheriff's deputies after county employees were told they couldn't speak to defense counsel unless prosecutors were present. And he represented DA Reed's former personal driver, Mark Gudanowski, when he was accused - and ultimately acquitted - of illegally selling Southwest Airlines vouchers, some of which were used by Reed and her First Assistant Cliff Herberg. McCrum has a reputation of someone not afraid to stand up to the Bexar DA, a distinction not many local defense lawyers care to cultivate.Courthouse wags might not be as quick to suggest a tit for tat except that Reed has developed a reputation for persecuting those who stand up to her. Just this week, her office had to dismiss charges in an embezzlement case where prosecutors famously subpoenaed papers off the defense counsel's desk during trial and alleged an attorney had conspired with his client to steal them - charges that never came to fruition. The local defense bar called out the DA's office for prosecutorial misconduct and the judge ordered a mistrial. The heavy-handed tactics badly backfired and now the defendant won't be prosecuted.Another example: when the Legislature authorized a pilot needle exchange program in Bexar County, Reed nixed it by threatening to prosecute anyone who participated.So close observers are used to this sort of domineering behavior from the Bexar DA. Whether or not Reed's office succeeds in securing a contempt order against Mr. McCrum, they've already sent their desired message to the local defense bar: Either kiss butt when you're told or face retaliation if you try to stand up to bullies in the prosecutor's office.
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"The 5th Annual CrimProf Conference--Call for Papers"
Details available here.
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News Roundup
I usually listen to sports talk radio on the way to work – normally Mike and Mike – but I mix in a little NPR when the conversation lags. This week, I turned the dial just in time to catch this terrific story about exonerations, which reported that “[a]t least 87 people were set free […]
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C.P.L. 440.10 motion...cont
After oral argument of the C.P.L. 440.10 motion, the matter was set down for a hearing. At a hearing on a motion pursuant to CPL 440.10, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion in accordance with C.P.L. 440.30(6) and as was held in People v Tucker, involving a motion to vacate a judgment of conviction based on new evidence pursuant to C.P.L 440.10(1)(g) and People v Tankleff.
The court is now faced with the issue of whether or not the failure of a defense attorney to pursue a possible defense theory in and of itself deny the defendant meaningful representation of counsel.
It is the defendant’s contention that judgment was obtained in violation of a right of his right under the constitution of this state or of the United States pursuant to C.P.L. 440.10(1)(h). In this case, the defense maintains that because the defense attorney, who represented the defendant in 2008, failed to advise the defendant that he could have raised a defense to the charge of Common Law Driving While Intoxicated, V.T.L. 1192(3), to wit: that he had not put his vehicle in operation, as that term is defined by the law, he was denied his right to counsel as guaranteed by the both the United States Constitution and the New York State Constitution.
There are two distinct judicial standards for determining ineffective assistance of counsel. The federal courts apply a two-prong standard as ruled in People v. Turner.
Under the Federal Constitution, a guilty plea will be upheld as valid when it represents a voluntary and intelligent choice among alternative courses of action open to a defendant as was done in Hill v Lockhart. A defendant who seeks to challenge the voluntary and intelligent character of a guilty plea on the ground of ineffective assistance of counsel must establish that defense counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty as held in Strickland v Washington and People v Ortega.
The New York State courts have departed from the second prong of Strictland, adopting a rule somewhat more favorable to defendants as in People v Turner. A defendant must receive meaningful representation. The court is now faced with the question of what constitutes meaningful DWAI representation.
It was held in People v Baldi that a defendant receives the effective assistance of counsel when the totality of the circumstances of the matter allows the conclusion that a defendant received meaningful representation. But meaningful representation does not require perfection as held in People v Ford and People v Anderson. In People v Mouck, a driving while intoxicated DWI case, that is somewhat similar to the instant case, the defendant alleged that he was denied adequate assistance of counsel because his attorney did not request a probable cause hearing. The court held that the failure to pursue a particular pretrial remedy does not, ipso facto, demonstrate ineffectiveness in People v Rivera. The pivotal inquiry is whether counsel's decision is premised on a legitimate, strategic basis.
It was ruled in People v Boodhoo and People v Mayes that in the context of a guilty plea, a defendant receives meaningful representation when he obtains an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. In People v Black, People v Garcia and People v Mercado, it was held that once a defendant acquires a favorable plea bargain, it cannot be concluded that the defendant was denied effective assistance of counsel.
To Be Cont....
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Clay County Criminal Defense Attorney :: Former Clay Schools Employee Charged with Racketeering
A former 53-year-old information technology specialist for the Clay County School District was arrested Tuesday after deputies allege he stole $19,000 worth of equipment from several schools and then sold the items online. The Green Cove Springs man was arrested at his home Tuesday afternoon after detectives claim he stole computer and audio-visual equipment, including […]
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The 3 Main Reasons why Michigan Driver's License Restoration Appeals lose - Part 1 - Introduction
There are really 3 principal reasons why a Michigan driver's license restoration appeal before the Secretary of State's DAAD (Driver Assessment and Appeal Division) gets denied. In this series of articles, I want to look at each one, in turn....
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Appeals Court Overturns Conviction based upon Sixth Amendment Violation
I'm seeing a scary trend. An unholy alliance between the legislature and judicial branch dedicated to concocting new laws that make convicting citizens easier. Tiny example: when I started defending criminal cases in 1993, I was permitted two closing arguments; the first closing, then a rebuttal after the state. Not anymore. The accused only get to make one closing argument.
Many technical rules of the court are tipping in favor of the state. Add to this the fact that the legislation itself has gotten out of control, we have more criminal laws on the books than ever before. And, lets not forget that our incarceration rates are through the roof. Oh, and can judges make sentencing decisions? Sort of, as long as they don't disagree with the mandatory minimum sentences. Yes, the constitution places limits on some of these changes, and one such limitation is found in the Sixth Amendment.
The Six Amendment states that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This constitutional right is known as the Confrontation Clause, and it forces prosecutors to use live testimony in trial so that the accused may properly cross examine the witness against him, rather than permit prosecutors to admit pieces of paper which cannot be questioned. Recent Confrontation Clause case law from our U.S. Supreme Court has overturned state practices which permit papers to be introduced as evidence against citizens when the admission of such papers will not permit the accused to cross examine such. Massachusetts had a law which permitted the prosecution in drug cases to simply admit a lab report to identify what the drug was--that law was struck down because there is no way for the defendant to challenge the report, the testing procedure, the qualifications of the test operator, etc. (for more info, see my article here, on Melendez-Diaz v. Massachusetts).
Prosecutors like using documents instead of live testimony because defense attorneys cannot effectively cross examine a piece of paper. Defense attorney cross-examinations provide juries a greater level of understanding--and we all know knowledge seems to be something our government seeks to keep out of the juries hands. Don't get me wrong, I try to keep stuff out too, but I'm not an elected official sworn to seek justice...you know what I'm trying to do. Police work is only easy in a police state, and new laws and new court opinions that make police work easier simply erode what little freedom we have left. I'm not all doom and gloom here, as one recent Fourth District Court of Appeals case shut down a prosecutor and trial judge who permitted written testimony to be given to a jury in violation of the Sixth Amendment.
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IN - Homeless sex offenders to be out in the cold
Homeless ShelterOriginal Article
02/06/2014
By Douglas Walker
MUNCIE - A Muncie pastor is seeking the public’s help in trying to find shelter for a small group of convicted sex offenders who are...
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NLJ: Chief Justice Roberts Names Two Judges to Surveillance Court
NLJ: Chief Justice Roberts Names Two Judges to Surveillance Court by Todd Ruger:
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Judge Incorrectly Added House Arrest After Bond Was Already Set
In the case of Anthony Steffen versus the State of Florida, the prosecutor filed a motion asking the judge to revoke Mr. Steffen’s bond and to put him in jail two months after Steffen had gone to his First …The post Judge Incorrectly Added House Arrest After Bond Was Already Set appeared first on Chapman Criminal Defense Firm.
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Sharon’s Wig Salon Warning
Are you considering doing business with Sharon’s Wig Salon in Brookfield, Wisconsin? Think again. Here is a brain tumor patient’s horrific experience with owner Sharon Heyden. It is bad enough that Sharon and her employee treated Alison Ziebell (a mother who is undergoing radiation treatments and is in need of a wig) poorly from a […]
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UK - Introduction to the Female Paedophile
We have no doubt there are female pedophiles, but we are sick and tired of the media / politicians and organizations misusing the term. Just because someone commits a crime against a child that...
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The jury nevertheless convicted the defendant of conspiracy....cont
The tapes confirm that the defendant repeatedly assured the undercover officers that his cousin was flying to New York with the money to pay them, but there was no evidence that the defendant even had a cousin, much less...
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Order of Protection – DISMISSED!
Order of Protection – DISMISSED! I am a criminal defense attorney, as you are most likely aware. There is a subset of criminal law that melds into civil work – Petitions for an Order of Protection. I used to shy away from these but over the past few years I’ve taken on many of these […]
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More Pages to Explore .....
