The Texas Tribune posts, "Death Row Inmate Larry Swearingen's Execution Stayed," written by Brandi Grissom. Montgomery County state district court Judge Kelly Case on Wednesday withdrew an order that had set the execution of condemned murderer Larry Swearingen for Feb....
Judge Issues Stay for Larry Swearingen Opening Path for DNA Testing
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If I am convicted of possession of child porn charges, what are the consequences? (CPC 311)
A conviction for possession of child pornography can have a severe impact on your life and carry heavy consequences. Depending on the circumstances of your crime the prosecutor can charge you with either a misdemeanor or a felony for possession...
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US Sentencing Commission releases (and provides on-line here only) new Booker report
I was very excited late yesterday to get a call from people at the US Sentencing Commission to tell me (1) that the USSC had completed and was starting to distribute its latest big new report on federal sentencing practice...
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Civil Robo-Signing Lawsuit Settled for $2.5M
Lender Processing Services, Inc., and its now defunct subsidiary DocX, a document processing company located in Georgia, settled a robo-signing civil lawsuit for $2.5 million.
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Broward Deputies Accused of Falsifying Arrest Report
A second Broward County Sheriff's deputy is facing criminal charges for reportedly falsifying a report following the arrest of a man in a convenience store.![surveillance.jpg]()
Our Fort Lauderdale criminal defense lawyers know that this case not only illustrates the fact that official law enforcement reports can't always be trusted, but also the rights of citizens when approached by officers not involved in an active investigation.
First, let's begin with the facts of this particular case.
Back in early 2010, a 47-year-old Fort Lauderdale man was in a gas station convenience store, waiting for a fresh cup of coffee to be brewed, when he was approached by a uniformed sheriff's deputy.
The deputy reportedly recognize the man from a traffic stop more than a month earlier. The deputy alleged that the coffee-sipping citizen "stared him down." The deputy walked up and demanded the man's ID. However, believing he had done nothing wrong - and he hadn't - the man refused. The deputy said he then ordered the man to leave the store, but he refused.
It was at that moment that another sheriff's deputy walked into the store, saying he was responding to aid an officer who was investigating a suspicious incident. He would later report that when he arrived, the suspect was hostile - yelling, clenching his fists and advancing toward his fellow officer. The second deputy subsequently tackled the suspect to the ground, handcuffed him and charged him with criminal trespassing, assault on a law enforcement officer and resisting arrest. He duly noted all of this in the arrest report.
And the case may have been prosecuted without incident had it not been for one thing: a video surveillance camera inside the store. That footage did not back the deputies' version of events. There was not a sliver evidence that that suspect was acting in a hostile manner, either clenching his fists or making a move toward either deputy or resisting their efforts to arrest him.
What's more, as it later turned out, the first deputy had never called for back-up in the case. The second deputy later back-tracked and said he had stopped into the store for a quick break to get a drink and use the restroom when he stumbled upon an escalating situation.
As a result, the state not only dropped the charges against the suspect, it filed charges against both deputies. The first was convicted in May of last year of two misdemeanors for falsifying a report, and sentenced to one month in jail. Now, the second deputy is on trial for the same and facing up to two years in prison.
Of course, this is only one scenario in which police were caught being untruthful. It's certainly not the only case, as our criminal defense lawyers well know.
This case also highlights your right to decline so-called "consensual encounters" with police officers. Basically put, you are obliged to cooperate with officers who have reasonable suspicion that you have done something wrong. If you don't, you may be arrested.
However, officers who don't have reasonable suspicion can't force you to engage them, but they can approach you under the premise of a "consensual encounter." That is, both parties voluntarily agree to the interaction. The problem is, it's often difficult for a civilian to tell which is which.
The best way to do this is to simply assert your right to decline to speak to an officer. Be polite, but be explicit and firm. In fact, this is the tact you should take whether you or not you are under arrest. There won't always be a video camera to refute an officer's story, so it's important for you to be as clear as possible, and say as little as possible thereafter.
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Our Fort Lauderdale criminal defense lawyers know that this case not only illustrates the fact that official law enforcement reports can't always be trusted, but also the rights of citizens when approached by officers not involved in an active investigation.
First, let's begin with the facts of this particular case.
Back in early 2010, a 47-year-old Fort Lauderdale man was in a gas station convenience store, waiting for a fresh cup of coffee to be brewed, when he was approached by a uniformed sheriff's deputy.
The deputy reportedly recognize the man from a traffic stop more than a month earlier. The deputy alleged that the coffee-sipping citizen "stared him down." The deputy walked up and demanded the man's ID. However, believing he had done nothing wrong - and he hadn't - the man refused. The deputy said he then ordered the man to leave the store, but he refused.
It was at that moment that another sheriff's deputy walked into the store, saying he was responding to aid an officer who was investigating a suspicious incident. He would later report that when he arrived, the suspect was hostile - yelling, clenching his fists and advancing toward his fellow officer. The second deputy subsequently tackled the suspect to the ground, handcuffed him and charged him with criminal trespassing, assault on a law enforcement officer and resisting arrest. He duly noted all of this in the arrest report.
And the case may have been prosecuted without incident had it not been for one thing: a video surveillance camera inside the store. That footage did not back the deputies' version of events. There was not a sliver evidence that that suspect was acting in a hostile manner, either clenching his fists or making a move toward either deputy or resisting their efforts to arrest him.
What's more, as it later turned out, the first deputy had never called for back-up in the case. The second deputy later back-tracked and said he had stopped into the store for a quick break to get a drink and use the restroom when he stumbled upon an escalating situation.
As a result, the state not only dropped the charges against the suspect, it filed charges against both deputies. The first was convicted in May of last year of two misdemeanors for falsifying a report, and sentenced to one month in jail. Now, the second deputy is on trial for the same and facing up to two years in prison.
Of course, this is only one scenario in which police were caught being untruthful. It's certainly not the only case, as our criminal defense lawyers well know.
This case also highlights your right to decline so-called "consensual encounters" with police officers. Basically put, you are obliged to cooperate with officers who have reasonable suspicion that you have done something wrong. If you don't, you may be arrested.
However, officers who don't have reasonable suspicion can't force you to engage them, but they can approach you under the premise of a "consensual encounter." That is, both parties voluntarily agree to the interaction. The problem is, it's often difficult for a civilian to tell which is which.
The best way to do this is to simply assert your right to decline to speak to an officer. Be polite, but be explicit and firm. In fact, this is the tact you should take whether you or not you are under arrest. There won't always be a video camera to refute an officer's story, so it's important for you to be as clear as possible, and say as little as possible thereafter.
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CRIDER v. STATE - A12A2414: The Gray-Areas of Miranda and Initial DUI Investigations
Terri Crider was pulled over for failure to maintain lane. When the officer made contact with Crider, he noticed the odor of alcohol on her breath, bloodshot and glassy eyes, and slightly slurred speech. Crider admitted to having been drinking and even said that she was not safe to drive. The officer asked if Crider would perform some field sobriety tests, and she said that “if [he] was going to give her a DUI, just to go ahead and take [me] to jail.” The officer declined the invitation and performed the horizontal gaze nystagmus (eye test) and walk-and-turn field sobriety tests, as well as a hand-held portable breath test. He then arrested Crider for DUI. During the investigation, at no time did the officer tell Crider she was under arrest, place her in handcuffs, or put her in the back of his vehicle. In a motion to suppress Crider contended that since she was not read her Miranda rights, the evidence gathered during the initial DUI investigation was obtained illegally. The trial court denied her motion, and Crider appealed. Citing State v. Pierce, 266 Ga. App. 233, 235 (1) (596 SE2d 725) (2004), Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998), and Turner v. State 233 Ga. App. 413, 415 (1) (a) (504 SE2d 229) (1998), the Court of Appeals affirmed the trial court's ruling.
In Pierce, the Court asserts that “Miranda warnings are not required while an investigating officer conducts preliminary questioning or field sobriety tests,” but after a suspect is arrested Miranda rights must be read if further questions and field sobriety tests are to be admissible. As defined in Price, “the test for determining whether a suspect is under arrest 'is whether a “reasonable person in the suspect's position would have thought the detention would not be temporary.”'” A “reasonable person,” as defined in Turner, is “one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” Finally, the court asserts that:
[a]bsent the officer making any statement that would cause a reasonable person to believe that he was under arrest and not temporarily detained during an investigation, the officer's "belief" that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe he was under arrest.
Pierce, supra.
The sheer volume of analysis that Court goes through to explain why a person detained for suspicion of DUI of need not be informed of their right to an attorney nor right to remain silent just goes to show the breadth and width of legal gray-areas involved in DUI investigations.
Cutting through the fog, the issue at hand is whether an officer is legally obligated to inform a DUI suspect of his or her rights before obtaining evidence that could lead to an arrest. It's important to note that suspects retain their Miranda rights whether informed of them or not. All field sobriety tests are voluntary and DUI suspects are not required to tell an officer they've been drinking, but Miranda warnings are specifically used only when someone is under arrest, and there isn't anything like the implied consent warning for field sobriety tests. The Court is technically right in that an officer is not required to give a Miranda warning during most pre- formal arrest DUI investigations, but considering that the amount and depth of evidence required to make a DUI arrest is not objective, it's not clear at what a point “reasonable person” would decide if a detention is going to be temporary. When an officer's “belief” that probable cause exists qualifies him to detain a suspect and then gather evidence to validate his “belief” without supplying a Miranda warning, the arrest becomes self-fulfilling and Miranda are rendered meaningless. The decision reaches a similar result to Jones v. State (2013)
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George Ryan Released From FCI
Today's Chicago Tribune reports, "Ryan returns home to finish sentence under house arrest." It's by Jason Meisner, Annie Sweeney, and Angie Leventis Lourgos. Former Illinois Gov. George Ryan was let out of a federal prison in Indiana in the dead...
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Maryland DUI and the Roadblock Arrest
The Super bowl of football is this weekend in New Orleans. The Baltimore Ravens v. San Francisco 49ers, it should be a good game with the Ravens proving victorious. In light of this rare occasion undoubtedly folks will drink to excess and endeavor to drive drunk. The police of course will be out in force enforcing Maryland’s DUI law. Under these "perfect storm" circumstances it is quite possible that you might stumble upon, and fall prey to, a DUI roadblock where you will be flagged and your car will be stopped for no legal reason whatsoever and you will be questioned about your comings and goings. The police will be peering in the window with their trusty energizer bunny flashlight looking for incriminating evidence like a past out body in the back of the car, empty beer and vodka bottles on the floor, or the odor of alcohol emanating from the driver's or occupant’s breath or person.
DUI Roadblock cases are a very strange breed of case because the cops/government has no legal basis to stop your case. Therefore, you do have legal options that may surprise you. First, the police must publicize the existence of the roadblock ahead of time so the motoring public is less frightened by the cop's world war 2 like scare antics. This means something must be posted in the paper or on the radio or TV. Second, there must be a legal way for the motoring public to stop and turn around if they do not desire to go through the block. There must be signs on the road as you approach the roadblock to alert you as to what is happening, thereby giving you a heads up to turn around. Third, despite the cops barking orders at you to the contrary, you may not even need to roll the window down and speak with them (depending on the circumstances). The truth is you don't have to speak with them at all and they must let you pass, unless they observe something that triggers or heightens their interest, ie. Gives them reasonable suspicion that you are breaking the law.
The problem comes in when you do actually stop your car, roll down the window and engage them in conversation. As they smell alcohol in the car and see red glassy eyes and hear mush mouth speech they now have reasonable suspicion to pop you out of the car for field tests, which you do not and should not perform (although you do have to get out of the car at this point- you do not have to do the tests).
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New Ohio Supreme Court Justice Considers Death Penalty Unconstitutional
"Ohio Supreme Court Justice William O'Neill dissents from death penalty ruling," is by Brandon Blackwell in the Cleveland Plain Dealer. Here's an extended excerpt: The Ohio Supreme Court's newest justice wants no part in scheduling state executions. Justice William O'Neill,...
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An Update on the Colorado Movie Theater Shooting Case
ReutersLegal posts, "Prosecutors in Colorado theater shooting hire death penalty expert." It's written by Keith Coffman. An expert in capital punishment cases has joined the attorneys prosecuting accused Colorado movie theater gunman James Holmes, which could indicate they will seek...
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Are We Making Progress? Number of Los Angeles DUIs Over the Holiday Season Down from 2011 Numbers…
Statistics compiled by the Los Angeles County Sheriff's Department and California Highway Patrol spell good news: the number of Los Angeles DUI arrests over the holiday season dropped substantially from the 2011 numbers. ![la-dui-arrest-over-holidays.jpg]()
The stats are still pretty staggering, but they mark a step in the right direction. Here are the numbers. From December 14 through December 19, per the LA County Sheriff’s Department, police officers from 100 different agencies busted 1,773 people for DUI in Los Angeles -- down by nearly 500 from the 2011 numbers for the same period (2,205).
Meanwhile, the California Highway Patrol recorded a radically different trend statewide.
Between December 21 and December 25, 1,170 people got arrested for driving under the influence in California, and 39 people died. This compares poorly to the 2011 stats for the same period -- 980 arrested and 14 killed.
When you tally up the numbers from December 14 through January 1, they are also pretty eye opening. 2,168 people got arrested throughout Los Angeles for DUI, per the Sheriff’s Department’s report. That means that one out of three arrests -- almost 600 DUIs -- came during the final 4 days of the campaign, from December 28 through January 1.
As we've discussed before, Los Angeles DUI arrests spike like crazy during holidays like New Year’s Eve, because partying people fail to get designated drivers or create “Plan Bs” for their route home.
The Sheriff’s Department leveraged a variety of methods to crack down on DUI driving during the holiday, including roving patrols, multi-agency task force operations, checkpoints, and beyond -- all made possible by a California Office of Traffic Safety grant.
What should you do if you got wrapped up in the Los Angeles DUI holiday “dragnet”?
Whether you got stopped at a checkpoint and arrested for a routine misdemeanor charge, per California Vehicle Code Section 23152(a) or 23152(b); or you got tagged for a more complex offence, including hit and run, resisting arrest, assaulting a police officer, et cetera, you’re entitled to a stiff defense.
The question before you is: how should you build that defense? How can you avoid the scary penalties, such as loss of your Californian driver’s license, substantial jail time, large fines, and a substantial criminal record?
The team here at the Kraut Law Group can help you put together a detailed, step by step strategy to manage your charges and confront them in the most effective and knowledgeable way. Attorney Kraut is a Harvard Law School educated former prosecutor -- he worked for the city for many years, so he knows what prosecutors tend to do in case like yours, and he can help you prepare accordingly. Get in touch with him and his team today for a free consultation.
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The stats are still pretty staggering, but they mark a step in the right direction. Here are the numbers. From December 14 through December 19, per the LA County Sheriff’s Department, police officers from 100 different agencies busted 1,773 people for DUI in Los Angeles -- down by nearly 500 from the 2011 numbers for the same period (2,205).
Meanwhile, the California Highway Patrol recorded a radically different trend statewide.
Between December 21 and December 25, 1,170 people got arrested for driving under the influence in California, and 39 people died. This compares poorly to the 2011 stats for the same period -- 980 arrested and 14 killed.
When you tally up the numbers from December 14 through January 1, they are also pretty eye opening. 2,168 people got arrested throughout Los Angeles for DUI, per the Sheriff’s Department’s report. That means that one out of three arrests -- almost 600 DUIs -- came during the final 4 days of the campaign, from December 28 through January 1.
As we've discussed before, Los Angeles DUI arrests spike like crazy during holidays like New Year’s Eve, because partying people fail to get designated drivers or create “Plan Bs” for their route home.
The Sheriff’s Department leveraged a variety of methods to crack down on DUI driving during the holiday, including roving patrols, multi-agency task force operations, checkpoints, and beyond -- all made possible by a California Office of Traffic Safety grant.
What should you do if you got wrapped up in the Los Angeles DUI holiday “dragnet”?
Whether you got stopped at a checkpoint and arrested for a routine misdemeanor charge, per California Vehicle Code Section 23152(a) or 23152(b); or you got tagged for a more complex offence, including hit and run, resisting arrest, assaulting a police officer, et cetera, you’re entitled to a stiff defense.
The question before you is: how should you build that defense? How can you avoid the scary penalties, such as loss of your Californian driver’s license, substantial jail time, large fines, and a substantial criminal record?
The team here at the Kraut Law Group can help you put together a detailed, step by step strategy to manage your charges and confront them in the most effective and knowledgeable way. Attorney Kraut is a Harvard Law School educated former prosecutor -- he worked for the city for many years, so he knows what prosecutors tend to do in case like yours, and he can help you prepare accordingly. Get in touch with him and his team today for a free consultation.
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Former 49ers and Raiders player faces felony charge
Kwame Harris, a 30-year-old former 49ers and Raiders offensive lineman faces domestic violence charges for the injuries on an ex-boyfriend. In altercation took place int he parking lot of a Menlo Park restaurant after an argument occurred. Harris was present...
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California Congressman Says Gun Violence Victims Should Have the Right to Sue
Newton. Aurora. Columbine.
Who is responsible?
According to one California Congressman, the notion that guns don't kill people, people kill people, is ludicrous, and he's introducing a bill to put the burden where it really belongs - on the gun industry. Representative Adam Schiff (D-CA.), plans to introduce the Access to Justice for Victims of Gun Violence Act which will allow victims of gun violence to sue the gun industry "when it acts with negligence and disregard for public safety." If passed by Congress and signed by the President, this bill will essentially undo the 2005 law gun law which shields firearms manufacturers and dealers from liability lawsuits.
The 2005 gun liability bill was the No. 1 legislative priority of the National Rifle Association and was aimed at ending a number of lawsuits by individuals and municipalities, such as New York City and Chicago, which sought to hold gun manufacturers and dealers liable for negligence when their weapons were used in crimes. The gun liability bill, which did not bar lawsuits which involved defective weapons or criminal behavior by a gun maker or dealer, was passed by Senate Republicans who held a strong majority in the Senate, and 58 Democrats and 223 Republicans in the House. Since the bill's passage, most of the lawsuits against the gun industry have been dismissed. Additionally, over 30 states adopted laws similar to the federal bill.
"Good gun companies don't need special protection from the law, and bad companies don't deserve it," Schiff said in a statement. "Other industries across our country don't enjoy this protection under the law - from pharmaceutical firms to automotive manufacturers or even cigarette companies - and it's inexcusable for Congress to give the NRA and gun manufacturers a blank check." Immunity from civil liability would be stripped away in state and federal court for licensed manufacturers, distributors, and dealers of firearms, as well as their trade associations, in most negligence and products liability actions.
If you or a family member have been a victim of gun violence, please contact Parker | Scheer LLP for a free consultation with one of our experienced Personal Injury Lawyers.
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Federal Judges Sentencing Child Pornography Defendants to Probation or Days in Jail
I have written before that I think Arizona's "sexual exploitation of a minor" sentencing is far, far too severe (see "Should Mere Possession of Child Pornography Mean Decades in Prison?"). In Arizona, the sentence is a range from 10 to 24, with a presumptive of 17 years. It is a misdemeanor in California. Fortunately, it seems that my view is shared by the most unlikely group of people, federal judges. US District Court judges have a reputation for handing out severe sentences in all sorts of cases, and for any particular judge who may show a lenient side, the federal sentencing guidelines have weeded those tendencies out.
That being the case, it is quite remarkable a sizable group of federal judges have started asserting themselves and taken matters into their own hand. When I mean "taking matters into their own hand", I don't mean judicial activism or anything along those lines. What I mean instead is federal judges are now reestablishing the traditional constitutional separation of powers in which congress defines crimes and judges use sentencing discretion. And in fact, these judges are sentencing some offenders to probation or even just days in jail. For a list of cases, see child porn -- list of probation or one day -- final corrected.docx from the federal public defender's office.
One recent case that is particular interesting is United States v. Saenz, No. M-05-CR-877 (S.D. Texas 2011). That is because the sentencing judge, Judge Hinojosa, is the former Chair of the U.S. Sentencing Commission. In that case, the defendant had 126 images including an image of a boy being raped, but he never acted out against anyone. The important point here is that there is no evidence that someone who posses child porn will actually hurt anyone, and it makes no sense for Arizona to sentence someone to more prison time for possessing an image than actually acting out on it.
In fact, while I have no studies to support this view, it could be the case that possession of child pornography may actually be a safety valve of sorts in which a potential child molester may fantasize about children instead of actually doing something. My ultimate point is not that possession of child pornography ought not be a crime, but that automatically throwing the book at someone for mere possession is not such a great idea. Judges should have the power to decide which sentence is appropriate.
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Execution Stayed in Texas
A Montgomery County District Court Judge granted Texas death row inmate Larry Swearingen a stay of execution yesterday, four weeks before he was scheduled to die by lethal injection. The decision followed a hearing in which the Innocence Project and Swearingen's attorneys argued for DNA testing that could prove his innocence in the 1998 murder of Melissa Trotter. Swearingen's attorneys argued that the current DNA testing statute was expanded by the Texas Legislature in direct response to Swearingen's unsuccessful requests for testing, reported KTRK (ABC-Houston).
Just before his ruling, Judge Kelly Case said, "I think we need certainty before we have finality."
The prosecution's request to set an August execution date was denied. Instead, Judge Kelly Case gave them 60 days to file a response to the motion before he makes a decision on DNA testing. Read the full article. More coverage: Texas Tribune: Death Row Inmate Larry Swearingen's Execution Stayed (01/30/2013) Houston Chronicle: Condemned man gets another reprieve (01/30/2013) Associated Press: Judge withdraws execution date in college slaying (01/30/2013)
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Video on Probable Cause Traffic Stops Resulting in DUI
This is David Black today. We’re talking generally about probable cause and more specifically reasonable suspicion when it comes to traffic stops and likely in your case the traffic stop which eventually led to a DUI. Before we get to … Continue reading →
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Texas House plans to rewrite Code of Criminal Procedure, appoints committees
Texas House Committee assignments came out this morning. The big news on the criminal-justice front is the creation of a Select Committee on Criminal Procedure Reform, a five-member committee whose charge (see here, p. 43) reads: "The Code of Criminal Procedure ... has not been rewritten since 1965. As a result, it has become overcrowded, disorganized and difficult to navigate, such that there is a pressing need to consider rewriting and reorganizing it. Therefore the select committee shall study and make recommendations regarding the reorganization and revision of the Code of Criminal Procedure." Presumably this rewriting will take place in the interim and result in recommendations to the 84th Texas Legislature in 2015. Here's its membership:Select Committee on Criminal Procedure ReformChair: Debbie RiddleStefani CarterAbel HerreroJoseph MoodyTan Parker And here are the membership lists for the three main standing committees related to criminal justice topics:CorrectionsChair: Tan ParkerVice Chair: James WhiteAlma AllenDebbie RiddleToni RoseJ.D. SheffieldSteve TothChairman Parker is new to the job but was on the Corrections Committee last session.Criminal JurisprudenceChair: Abel HerreroVice Chair: Stefani CarterJoe MoodyLon BurnamBryan HughesJeff LeachMatt SchaeferSteve TothVice Chair Stefani Carter is the only member who was on the committee last session, though Joe Moody was on the committee in 2009. And finally, Homeland Security and Public Safety has a new chair:Homeland Security and Public SafetyChair: Joe PickettVice Chair: Allen FletcherTony DaleGeorge LavenderPhillip CortezDan FlynnTim KleinschmidtKenneth SheetsRon Simmons See the complete lists by committee and by member. Here we go, folks.
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D.C. Plea Deal Without An Attorney Could Lead to Deportation
If you are an immigrant who has been recently arrested in D.C., this information will be particularly important for you: Do NOT accept a plea deal - even on a misdemeanor charge - without first consulting with a lawyer. ![despair.jpg]()
D.C. criminal defense lawyers understand that prosecutors often take advantage of the fact that legal and illegal immigrants in this country may not fully grasp the scope of their rights. Many are pressured into accepting plea deals, without being told that a conviction even on minor charges may - and often does - result in deportation.
The law requires that an attorney be appointed to all defendants accused of a felony crime in which they are facing more than a year behind bars. However, misdemeanor charges in which you aren't facing serious jail time don't require that the government give you a lawyer. But it is a very good idea, especially given what is at stake for immigrants.
The issue was recently highlighted in a report by The Washington Post. The reporter interviewed a 19-year-old who was arrested last year for a misdemeanor marijuana possession charge in Virginia. Having never spoken to an attorney and wanting to get the case over with, he chose to simply plead guilty.
Prosecutors told him all he would need to do is pay a $185 fine and hand over his driver's license for six months.
He had no idea that the moment he did this, he gave the federal government grounds upon which to deport him - which is exactly what happened a few months later.
Such scenarios are not isolated, and in fact have become commonplace.
Most of these individuals are arrested for non-violent, minor crimes. Yet they are being grouped in with with violent offenders in the deportation process.
It's become an increasing problem as of late because prosecutors in a lot of jurisdictions have begun automatically waiving jail time for a number of minor misdemeanors. The goal for them is to save the state money by preventing non-violent offenders from being housed in a correctional facility. But the latent effect is that by doing so, judges are freed from the requirement of having to provide defendants with attorneys - which also saves the government money.
Per Padilla v. Kentucky, a 2010 U.S. Supreme Court ruling, criminal defense lawyers are required to explain to illegal immigrant clients that when convicted of drug-related offenses, there is a heightened risk of deportation. This is an important consideration when deciding whether to fight the charge, as opposed to accepting a plea bargain. However, immigrants who don't have a lawyer may not know this.
Some have indicated that the whole process has become a deportation trap, something judges and prosecutors have of course denied.
Advocacy groups are now saying that the Padilla v. Kentucky standard should be applicable to prosecutors or judges when the immigrant defendant has no defense attorney.
We don't see them voluntarily adopting that standard anytime soon. That's why you need a criminal defense attorney, even in minor cases.
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D.C. criminal defense lawyers understand that prosecutors often take advantage of the fact that legal and illegal immigrants in this country may not fully grasp the scope of their rights. Many are pressured into accepting plea deals, without being told that a conviction even on minor charges may - and often does - result in deportation.
The law requires that an attorney be appointed to all defendants accused of a felony crime in which they are facing more than a year behind bars. However, misdemeanor charges in which you aren't facing serious jail time don't require that the government give you a lawyer. But it is a very good idea, especially given what is at stake for immigrants.
The issue was recently highlighted in a report by The Washington Post. The reporter interviewed a 19-year-old who was arrested last year for a misdemeanor marijuana possession charge in Virginia. Having never spoken to an attorney and wanting to get the case over with, he chose to simply plead guilty.
Prosecutors told him all he would need to do is pay a $185 fine and hand over his driver's license for six months.
He had no idea that the moment he did this, he gave the federal government grounds upon which to deport him - which is exactly what happened a few months later.
Such scenarios are not isolated, and in fact have become commonplace.
Most of these individuals are arrested for non-violent, minor crimes. Yet they are being grouped in with with violent offenders in the deportation process.
It's become an increasing problem as of late because prosecutors in a lot of jurisdictions have begun automatically waiving jail time for a number of minor misdemeanors. The goal for them is to save the state money by preventing non-violent offenders from being housed in a correctional facility. But the latent effect is that by doing so, judges are freed from the requirement of having to provide defendants with attorneys - which also saves the government money.
Per Padilla v. Kentucky, a 2010 U.S. Supreme Court ruling, criminal defense lawyers are required to explain to illegal immigrant clients that when convicted of drug-related offenses, there is a heightened risk of deportation. This is an important consideration when deciding whether to fight the charge, as opposed to accepting a plea bargain. However, immigrants who don't have a lawyer may not know this.
Some have indicated that the whole process has become a deportation trap, something judges and prosecutors have of course denied.
Advocacy groups are now saying that the Padilla v. Kentucky standard should be applicable to prosecutors or judges when the immigrant defendant has no defense attorney.
We don't see them voluntarily adopting that standard anytime soon. That's why you need a criminal defense attorney, even in minor cases.
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On Judges Getting It Right and Prosecutors Getting it Wrong and Testing and Believing the Fucking DNA
As Paul Kennedy wrote this morning,Judge tells state to just test the damn DNAwhich appears not to be exactly true, but hell, it was a headline. And it sure likes like he's about to tell them to test it.It's from Larry Swearingen's case, the one where nine (9!) forensic pathologists examined the autopsy results and concluded that the evidence clearly showed that he was innocent. You know, because he was in jail when someone (but not he) killed Melissa Trotter. And now it looks like they'll finally test the DNA. And really, it's about time and getting awfully close since the good people of Texas were meaning to kill him in less than a month. And of course the prosecutor is on their side because who gives a rat's ass about innocence, after all, when the chance for killin' is so close.Meanwhile, up here in the Buckeye State, the Honorable Judge Judy Hunter issued a 26 page opinion explaining that since the DNA showed Douglas Prade (about who I've written before) is innocent, well then. [T]he evidence that the Defendant presented in his case is clear and convincing. Based on the review of the conclusive Y-STR DNA test results and the evidence from the 1998 trial, the Court is firmly convinced that no reasonable juror would convict the Defendant for the crime of aggravated murder with a firearm. The Court concludes as a matter of law that the Defendant is actually innocent of aggravated murder. As such, the Court overturns the Defendant's convictions for aggravated murder with a firearms specification and he shall be discharged from prison forthwith.. . .The Court finds that no reasonable juror, when carefully considering all available evidence in the underlying trial in light of the new Y-STR DNA exclusion evidence, would be firmly convinced that that Defendant Douglas Prade was guilty of aggravated murder with a firearm. Given such a scenario, the outcome of the deliberation on these offenses would be different - the verdict forms would be completed with a finding of not guilty.(Emphasis added.) Which is almost as good as it gets. Except that the prosecutor is appealing. Because, after all, you can't let a simple thing like innocence get in the way of keeping a guy in prison for life.Or for death, if you're talking about Larry Swearingen. Prade ruling by ![]()
Douglas Prade - Released![]()
Larry Swearingen - On Death Row
Douglas Prade - Released
Larry Swearingen - On Death Row
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Florida Mother Pleads Guilty to Child Neglect for Allegedly Selling 6-Year-Old Daughter for Sex.
A Jacksonville Beach, Florida mother pled guilty in Duval County Circuit Court on January 30th to four counts of Child Neglect. Dalina Nicholas, 36, is accused of repeatedly selling sex with her 6-year-old daughter to drug abusing and homeless men in exchange for drugs and money to support her own drug habit. Nicholas, originally facing a sexual battery charge has agreed to testify against those men alleged to have sexually abused her daughter in exchange for that sexual battery charge being dropped. Sexual battery under Florida Statute 794.011 as alleged against the other defendants and likely as initially alleged against Nicholas is a Capital Felony with the requirement to register as a Sexual Predator. Generally Capital felonies are punishable by death. However, in Capital cases for rape of a woman or child not involving death, execution has been ruled to be unconstitutional by the United States Supreme Court through their decisions in Coker v. Georgia, 433 U.S. 584 (1977) and Kennedy v. Louisiana, 554 U.S. 407 (2008). As you can imagine, despite the terrible allegations against her, Nicholas has dodged a certain life sentence in her agreement to cooperate with the State. In all candor I believe this is a deal any Tampa criminal lawyer would advise his client to enter into should the implicating facts be overwhelming.
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