At the close of the evidence, assigned counsel chose to rely on the record declining the opportunity to make a legal argument or to otherwise make any closing statement. The assigned counsel did not ask for leave to serve a...
County Supreme Court ...cont
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Texas' new junk science writ called 'elegant' and 'phenomenally important'
The Atlantic has a story ("In Texas, a New Law Lets Defendants Fight Bad Science," Feb. 28) about SB 344 by Texas state Sen. John Whitmire, which created a procedure to challenge convictions based on junk science via the habeas corpus process. The article concludes:Mike Snedeker, president of the non-profit National Center for Reason and Justice, described the new law as “elegant and straightforward, and “phenomenally important,” not the least because it clarifies and builds on existing due process rights. In theory, defendants should always be able to bring a writ of habeas corpus on the grounds of new information; in practice, however, outside of cases involving DNA evidence, it’s difficult to do this.“You could say that the principles it embodies are already part of the federal constitution, but that’s sort of a fuzzy document and the judges that enforce it are distant… They don’t have nearly the credibility that a law passed by your own state has,” said Snedeker. “[The law] makes it clearer, it makes it definite, not an arguable constitutional principle, but rather it’s a state statute that clearly describes when and how you can challenge a conviction based on evidence we now know to be wrong.” The new statute offers another kind of clarity: “It’s important because a lot of really shaky evidence is clothed in objectivity,” said Snedeker, noting the incalculable impact expert testimony can have on a juror’s decision-making—especially expert testimony characterized as scientific or medical. “Our priests now are scientists, doctors,” said Snedeker. By giving defendants a way to question the sacrosanctity of scientific testimony, the court recognizes that science and medicine are mutable and continually evolving. ... There is, however, one important thing the new statute can’t do: keep bad science out of the courtroom in the first place. Expert witnesses can still draw dubious conclusions about blood spatter patterns, employ much-contested approaches like dog scent line-ups, or try to divine an alleged arsonist’s intentions based on “crazed glass” patterns in windows. This makes Keith Hampton, a lawyer for the Kellers who used the statute in their habeas corpus writ, only cautiously optimistic about the new law. “A junk science bill that I would get most excited about is the one that prevents junk from coming into the court room in the first place,” he said. “And this absolutely does not, that’s plain. It’s put in the post-conviction chapter in the code of criminal procedure.” But Snedeker is nevertheless hopeful that the law will influence how cases look in the future. “I think it will definitely make prosecutors think twice,” he said. And ultimately, he’s impressed: “I’m just stunned, [because] I never thought there would be a time in my life when Texas would be a beacon of legal progress.”Go here to view written testimony submitted by your correspondent to the Texas Senate Criminal Justice Committee on behalf of the Innocence Project of Texas in support of SB 344.
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Notable new federal front in drug war being tried in South Carolina
I was intrigued to see this lengthy article at the Huffington Post headlined "Federal Prosecutor Tries A Radical Tactic In The Drug War: Not Throwing People In Prison." The piece merits a read in full, and here is a taste:...
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The New and Improved Stop and Frisk
Contrary to popular belief, the NYPD's Stop and Frisk program was not found to be facially unconstitutional. The problem was the way the NYPD elected to employ it. By deliberately stopping and frisking people solely because they are black males, or happen to live in certain areas, and so forth, all without a proper legal basis for the stop/frisk, the NYPD was engaging in racial profiling, and that is unconstitutional. It was also highly inefficient. But the numbers for the last quarter of 2013 indicate that the NYPD has revised its use of Stop and Frisk, and it is now much more effective. That is good news.According to an article in today's Daily News, statistics for the last quarter of 2013 show that NYPD officers made 12,495 stops between October and December. That may seem like a lot, but it is actually down 86% from the 89,620 stops made during the same time period in 2012. At the same time, 16% of the 4th quarter 2013 stops resulted in an arrest. The year before the arrest rate was only 10%.The data (or at least the data immediately available to us) is far too incomplete to reach any particular conclusions. But at first glance, two things appear obvious: one is that the cops are now making higher quality stops, meaning more of these stops are are occurring only when there is actually some factual basis to support the action, and that, as a consequence, a greater percentage of the stops are turning up criminal conduct.Equally good news is that murders in NYC during 2014 are, so far, running 21% behind last year's rate. Some credit may have to be given to the brutal winter we have had for the past two months, but the reduction suggests something else as well.The NYPD's new emphasis on quality over quantity in terms of Stop and Frisk has been a long time coming, and the improved success rate helps put the lie to the notion that eliminating racial profiling will trigger an immediate criminal onslaught throughout the city. That racist argument, offered up by apologists for the Bloomberg/Kelly regime, was factually and rationally devoid of merit; as the objective evidence is now starting to confirm.
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Another review of highlights from Marijuana Law, Policy and Reform
Another week of interesting developments covered at Marijuana Law, Policy and Reform seems to justify linking to some higlights: 2016 Republican National Convention in Denver? "Preserving Welfare for Needs Not Weed Act" Director of NIH notes that state marijuana legalization...
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How to be proactive following a DUI arrest
If you have been arrested for a DUI then time is of the utmost importance. In order to get the best outcome possible a driver arrested for a DUI needs to be proactive when it comes to three aspects of the DUI case. Not only will this help you as the accused in a DUI [...]
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Trial to Begin for Osama Bin Laden's Son in Law
Trial begins tomorrow for Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden. The "spokesman" for Al-Qaida is charged with conspiracy to kill United States nationals, conspiracy to provide material support and resources to terrorists and providing...
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Killing Them for Their Own Good
People like those I have described are evil and un-repentant. I am Christian and I believe in redemption, yet God’s grace is something that has to be requested. Facing death at the hands of an executioner might just drive home one’s mortality and hasten the individual’s request for God’s grace. Convicts have plenty of time to get right with God, so I have no problem with the timely execution of capital cases.That's the last paragraph of a column by Gerald Gay, state representative for House District 36 in Casper, Wyoming writing in the Casper Star-Tribune ("Wyoming's News Source") in response to a column by Linda Burt, Executive Director of the ACLU of Wyoming, who'd argued that Wyoming should abolish the death penalty. Gay's basic thrust is that the guys Wyoming wants to kill are monsters who've done horrific things, that they continue to do them in prison, and that it's an outrage that taxpayers (including some of those who survived their depredations) should be "paying for [their] every need." And he points to the two guys Wyoming's executed in his lifetime (one in 1966, the other in 1992 though Gay says it was '91), neither of whom, he says, had complained that their execution itself was cruel and unusual punishment. I'm not interested here in responding to his arguments about discrimination (the four guys sentenced to death in his lifetime are all white, so there can't be any) or cost (that business of the taxpayer's dime) or whether lethal injection or the gas chamber (which they used to kill Andrew Pixley in 1966) is cruel and unusual or painful, or whether Wyoming is capable of running a prison where the inmates don't kill each other (Gay doesn't actually wonder about that, he just notes that the inmates do so). Hell, I'm not even going to argue here that the guys executed, the ones who've gotten off the row (on "a technicality ruling by the Supreme Court" (the "technicality" was the U.S. Constitution and the fact that Wyoming's death penalty law was unconstitutional), and the guy who's on the row now don't deserve to be killed.You want to know what I think about those things and how I'd likely respond? I'm unalterably opposed to the death penalty because it's arbitrary and capricious, random beyond repair, terrible policy from almost every perspective (perhaps from every perspective), and deeply immoral. There are other reasons, too, but enough. Feel free to wander through the archives if you want details.It's that paragraph that got me going. They're unrepentant, but maybe when they're actually strapped to the gurney they'll get religion and ask god for forgiveness. Which, of course, they'll get. Because god is merciful to those who humbly seek her mercy. Or something.Gay's not the first one to put forth that argument. Hell, it's been part of the Anglo-American execution process since before there was an American to add as a hyphenate to the Anglo. Of course, not every self-identified as Christian supporter of killin' folks shares Gay's views on how repentence works (or how it should; some just want these guys to rot in hell - which doesn't strike me as very Christian, but I'm more inclined toward the biblical Jesus who preached acceptance and generosity and foregiveness than the Paul who was out there telling people that purity was all. Anyhow, I'm an atheist and not particularly interested in disputes among and between those who claim to know god's will.No, what interests me here is a disconnect that jumped out at me when I read that paragraph. God's mercy is available to anyone who seeks it. Man's mercy . . . . Not an option.We have to kill them, you see, for their own good. Because it's the only chance they have to be forgiven. God will forgive them if they just ask. We won't do it at all. And of course, even god won't forgive simply because it's a good thing to do. BecauseI the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me. Oh, wait, that's from Exodus (20:5). It's the Old Testament god. Before Christian mercy.Sigh.One more time. Mercy isn't about them. It's about us. ---------------------
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"Alternative Theories of Chapo Guzman's Arrest"
The post at TalkLeft runs through some of the suggestions as well as how they line up with the evidence.
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Tsarnaev Defense Renews Request for "Taint Team" and Lifting of SAM's
Dzhokhar Tsarnaev's defense lawyers have filed a motion (available here) renewing its request to lift the SAMs (special administrative measures) imposed by the Bureau of Prisons and to compel the Government to use a "taint team." The motion says...
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WA: SI after def's handcuffing of his computer bag and rolling duffle bag for armed robbery was valid
“When Abraham MacDicken was arrested on suspicion of armed robbery, he was carrying a laptop bag and pushing a rolling duffel bag. The arresting officers moved the bags a car's length away and searched them. MacDicken claims this search violated his rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. But as this court recently held, officers may search an arrestee's person and articles closely associated with his or her person at the time of arrest without violating either of those constitutional provisions. ... Applying that rule here, we hold that the bags carried by MacDicken were closely associated with him at the time of arrest and thus subject to search without a warrant.” State v. Macdicken, 2014 Wash. LEXIS 161 (February 27, 2014), affg State v. MacDicken, 171 Wn. App. 169, 286 P.3d 413 (2012).
Dissent: “¶12 McCloud, J. (dissenting) — The majority upholds the search of the laptop and rolling duffel bags in this case under a ‘time of arrest’ rule. Majority at 6. I believe that the ‘time of arrest’ rule is inconsistent with United States Supreme Court precedent. For that reason, I respectfully dissent.”
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Official: Millions in court costs illegally collected, probations wrongly revoked, based on new CCA opinion
The Texas Court of Criminal Appeals this week issued an odd and confusing opinion in a case styled Johnson v. State which was covered earlier on Grits, overturning the lower court's ruling that a defendant should not have to pay $234 in court costs because Harris County had never issued a written "bill of costs" as required under the statute. The CCA ruled against Mr. Johnson because belatedly during the appellate process Harris County came up with a written bill of costs for this one case, though the county does not routinely produce them in other cases. The court made a hair-splitting distinction between costs that are "payable" vs. costs which are merely "assessed." Under this ruling, court costs may be "assessed" without a written bill of costs, said the court, but they are not "payable" until the defendant receives written documentation.The CCA declared: "Article 103.001 [of the Code of Criminal Procedure] appears to act as a prohibition on the ability of designated state agents from collecting nonpayable, but assessed, court costs." So, according to this decision, a bill of costs is necessary before the government can "collect" any money from a defendant. Got it? Judges can "assess" court fees without a written bill of costs, but counties can't collect the money. Ted Wood, the Assistant General Counsel for the Office of Court Administration (OCA), explained the implications to your correspondent thusly via email:the collection of court costs by the government from those defendants who have never received a bill of costs appears to be improper. It's arguably a deprivation of property without due process of law as prohibited by the Fifth Amendment.The same idea could apply to persons who have had their probation revoked for the nonpayment of court costs. In the absence of a bill of costs, according to the Johnson opinion's reasoning, the probationers weren't obligated to pay the money because no government actor could collect it. Their probation revocations by the court could be suspect.So the CCA opinion has resulted in Mr. Manley Johnson owing the $234 assessed against him (because a bill of costs was eventually produced -- albeit late in the game). But the repercussions could be substantial.The bottom line is this: If you've been ordered to pay court costs but no bill of costs has been produced, you don't owe the money. Why? Because the government is prohibited from collecting it from you. And if you have already paid the money in the absence of a bill of costs, the collection of the money by the government was arguably unconstitutional.If that interpretation is accurate, Harris County may have won the battle over court costs but egregiously lost the war. Again from Mr. Wood, in response to Grits' followup questions:The opinion is not conducive to judicial economy. Here is what we may see:(1) Individuals in TDCJ who have never been presented with a bill of costs and who have had money withdrawn from their inmate accounts will be able to challenge the withdrawals in civil proceedings. This is because the government was prohibited from collecting this money.(2) Defendants who are assessed court costs (even if there is a bill of costs) will be able to challenge the assessments via "correction-of-costs" motions. See CCP, art . 103.008. These "corrections" are to be made by "the court in which the case is pending or was last pending." That court could be a court of appeals or even the CCA. For example, the last court in which Johnson and Cardenas were pending is the CCA. I wonder how the CCA will handle these motions in light of the "last pending" language. Will the CCA handle these motions itself? Will the CCA conduct a hearing in which evidence can be introduced? These questions were among the grounds on which the CCA granted review in Cardenas [ed. note: a companion case decided the same day as Johnson]. But then the opinion declined to address them. Note that the Cardenas opinion says "[c]onvicted defendants have constructive notice of mandatory court costs set by statute and the opportunity to object to the assessment of court costs against them for the first time on appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal Procedure." The Cardenas opinion goes on to say that these appeals and Article 103.008 proceedings are what satisfies a defendant's "right to due process of law" in regard "to notice and an opportunity to be heard regarding the imposition of court costs." So what the CCA effectively did is say that there was no problem that Mr. Johnson and Mr. Cardenas were unable to challenge the court costs assessed against them in the trial court because they can always come back and challenge the costs later. An alternative approach would have been to make sure a bill of costs exists at the time the defendant is being sentenced so as to not necessitate an entirely new level of court procedures to evaluate whether the amount of assessed court costs is correct.(3) Defendants who had their probation revoked for non-payment of court costs and who have never received a bill of costs appear never to have owed the money. There could be legal challenges in regard to these revocations.(4) Defendants who were ordered to pay court costs in the absence of a bill of costs and who did make their payments to government agents (who according to the Johnson opinion were prohibited from collecting the payments) may seek a civil remedy ...While the CCA preserved the assessments of the $234 in Johnson and the $294 in Cardenas, the result seems to be that millions of dollars in court costs could now be considered to have been improperly collected. Additionally, the case may have given rise to a real a logistical dilemma for handling of future court cost challenges.Bottom line, said Wood, "If a person has paid court costs and there was no bill of costs, then, according to the Johnson opinion, the government was actually prohibited from collecting the costs. This would seem to even include traffic cases in the justice and municipal courts - 93% of court cost revenue comes from these Class C misdemeanor courts. So even people who have only been convicted of speeding and similar minor crimes could seek reimbursement of their court costs." In other words, the Court of Criminal Appeals has created an enormous clusterf#%k that's almost certain to generate waves of litigation and likely will necessitate legislative intervention when the 84th session convenes in 2015. Wood believes the preferable solution would be to require a written bill of costs to be produced at the time of sentencing, comparing the process to routine consumer purchases:I have compared the bill of costs in some of my writings to getting a receipt at the grocery store that details one's purchases. If I am charged for two gallons of milk when I only bought one, then I can point out the problem and the bill can be corrected. If I am charged 79 cents per pound for bananas when the sale price was 39 cents per pound, I can look at my receipt and get this corrected. What if I didn't get a receipt at the grocery store? Then how would I even know that I had been overcharged? Yet in our court system, when there is no bill of costs there is no way to identify an overcharge. And mistakes and overcharges are common. I have argued that the court system ought to be at least as assiduous as HEB when it comes to assessing court costs.The OCA is presently in the process of reformulating Texas' model felony judgment forms as required under Article 42.01, Section 4 of the Code of Criminal Procedure, a process Mr. Wood is spearheading for the agency. The new forms will be finalized this spring with advice and input from a diverse stakeholder group, so we should have a clearer picture within the next few months of what impact these decisions will have on the ground. In the meantime, though, the Court of Criminal Appeals appears to have created far more problems with the Johnson decision than it resolved.
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Penal Law §220.03...cont
The People cannot be legally "ready" for trial without a properly converted complaint. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. Therefore the period from September 12, 2011 through November 3, 2011 must be charged to...
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Court Narrows Marital Communication Privilege in Illegal Porn Case
On January 6, 2014, the First Circuit Court of Appeals in United States v. Breton narrowed the scope of the marital communications privilege. The Federal case against Royce Breton, a… read more →
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Both officers ran to the front of the store...cont
During that time, the bystander was watching to the front of the store across the street. He was soon joined by another man. They both observed the officer at the store's entrance way. They then observed the man leave...
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How media cover "stand-your-ground" provisions
This recent Reuters story is interesting: A Georgia man who last November shot and killed a 72-year-old Alzheimer's patient who rang at his front door will not be charged with a crime because the homeowner feared for his safety, a...
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New York Public Health Law § 2805-d
A New York Criminal Lawyer said that, in this action, the plaintiffs seek to recover damages for medical malpractice and lack of informed consent. They allege that the defendants were negligent in failing to timely diagnose and treat the plaintiff...
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New York video recording of the test...cont
The court notes that the reliability of a field test is compromised precisely because it's done in the field, generally under less stable condition than that of the precinct. In states where field test are admitted a visual recording of the officer carrying out the test is provided to establish the reliability of that evidence. Similarly, in New York a video recording of the test is performed at the precinct to establish the reliability of its administration. In other states, where a portable breath test is done in the field it may be admitted in the People's case in chief because it is video recorded. Where a portable test is admissible there should be mechanisms in place to support its reliability. In DWI cases legislators have sought to ensure that the defendant is convicted on reliable evidence.
The portable SD-2 Intoxilyzer test and the Intoxilyzer 5000EN are used differently. The latter is used at trial to establish the level of alcohol in the defendant's body while the first is used in the field to determine if alcohol was consumed. Further, to admit the results of the Intoxilyzer 5000EN, which is conducted at the precinct, the People must show that the devise was properly calibrated, generally within about a six month period as held in People v Boscic. As the defense notes, machines are fallible and to admit the result of such equipment there must be evidence that the devise was regularly serviced and maintained to ensure its effective operability.
The court further notes that if portable breath tests done in the field were admissible in the People's case in chief due process would require advising the driver that the result of such test could be used to convict. Vehicle and Traffic Law § 1194 (1) (b) provides that a driver cannot refuse a breath test and that a chemical test may be given if the initial breath test indicates that the driver has consumed alcohol. Further, if portable breath test were admissible at trial to prove the suspect was legally intoxicated there would be no cause to provide for a second test, if the first were sufficient. To admit evidence of a portable breath test in a case in chief would be to circumvent the law. For the People to be able to rely on a portable alcohol breath test conducted at the scene in the field to prove their case in chief there must be a different criminal statutory scheme than that in existence.
Consequently, the People may not admit the result of the portable breathalyzer test for DWAI conducted in this case.
Accordingly, the defendant's motion to preclude evidence of the results of a portable breathalyzer test is granted.
Road accidents are mostly caused by drunk driving. It endangers not only the people inside the vehicles but includes bystanders or other road users. Thus, those responsible are held accountable for their acts of endangering the lives of other people on the road. Nonetheless, those “responsible” still have rights. The right penalty must be imposed in accordance with the violative act. It may or may not even go through trial proceedings.
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Alabama struggling with enduring challenges as tough-on-crime history creates "box of dynamite"
The New York Times today has this notable and lengthy article about the criminal justice reform challenges facing Alabama headlined "Troubles at Women’s Prison Test Alabama." Here are excerpts: For a female inmate, there are few places worse than the...
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Has anyone formally calculated exactly how very few federal sentences are found unreasonable?
The question in the title of this post is prompted by two noteworthy (or perhaps not really noteworthy) circuit opinions from last week in which two way-above-guideline sentences were affirmed as reasonable by the panels of the First and Seventh...
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