Defendant’s identity as one who was in the country illegally after previously being deported would not be suppressed, “even if the Court were to find something unconstitutional about the search of the home or Defendant’s detention.” United States v. Segundo, 2012 U.S. Dist. LEXIS 185484 (E.D. Tex. December 13, 2012).
Defendant stop for blocking the street was valid, and the officer could reasonable suspect further evidence of crime because of defendant dropped a pill bottle into the car when he got out. State v. Reed, 2013 La. App. LEXIS 165 (La.App. 4 Cir. January 30, 2013).*
“The affidavit was detailed and replete with information from which probable cause could be found” in his trucks parked at his house. United States v. Brown, 2013 U.S. Dist. LEXIS 13256 (D. S.D. January 31, 2013).*
E.D.Tex.: Identity not suppressable even if illegally obtained
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Social Security Office to have shorter hours
Social Security Offices Around the Country Introduce Shorter Hours Beginning on November 19, 2012, the Social Security Administration will close field offices to the public 30 minutes early each day. For example, in Ohio that means that Ohio Social Security … Continue reading →![]()
Rating: 10.0/10 (1 vote cast)
Related posts:Dayton, Ohio Social Security office among the slowest in the country
Dayton Ohio Office: Social Security disability attorneys
Commonly asked Social Security Disability / SSI questions.
Rating: 10.0/10 (1 vote cast)
Related posts:Dayton, Ohio Social Security office among the slowest in the country
Dayton Ohio Office: Social Security disability attorneys
Commonly asked Social Security Disability / SSI questions.
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White Plains City Court Criminal Charge Dismissed
Criminal Defense Lawyer White Plains
Andrew Proto a criminal defense lawyer in White Plains, Westchester County successfully had all criminal charges against a client dismissed. The charge was based upon a family dispute resulting in a broken cell phone. The charge of Criminal Mischief in the third degree, a class "A" misdemeanor, was dismissed by the Court. No restitution to the complaining witness had to be paid by the client and the file was sealed.
Criminal Mischief
The criminal charge of Criminal Mischief is defined as the damage of property of another. The value of the property and resulting damage determines if the charge is a misdemeanor or a felony.
Criminal Defense of the Charge
The basic criminal defense of a criminal mischief charge is to challenge ownership, value and intent. Of course, the top criminal defense lawyers provide an aggressive defense of many different factors but the aforementioned is the basic defense of any criminal mischief charge.
If you or a loved one is charged with any crime contact the law offices of Riebling, Proto & Sachs for a free consultation.
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SSDI - Getting Your Doctor On Your Side
Your doctor can make or break your disability case. ![orthopedics.jpg]()
One carefully-worded statement of support could be enough to sway Social Security administrators to give you the approval stamp. But a doctor who doesn't support you in this could end up being a big part of the reason your claim is denied.
Los Angeles Social Security Disability Attorney Vincent Howard of HOWARD LAW knows it's important to know where your doctor stands.
Keep in mind too that even if your doctor does support you, often, she may not be aware of what you need from her. You may not know either. That's why having a qualified disability attorney is so key to the whole process.
Our attorneys can also let you know when it might be time to change doctors, if yours is not supportive or cooperative. Of course,this is not a decision you want to make lightly or frequently - constantly moving from one doctor to the next could actually hurt your chances of a successful claim. A lack of much history will render your newest doctor's opinion virtually useless.
But if you stay on with a doctor who is not responsive to your SSDI application, you risk being sent to a doctor chosen by the Social Security Administration - and guess how their results tend to skew? Not in your favor.
For the most part, SSDI and SSI claims can be won (or lost) pretty much entirely on your medical records. This means you have to provide them with extensive and detailed records and medical notes. This would include everything from lab reports to x-rays to MRIs to treatment notes. Another key piece of evidence would be a statement from your doctor, advocating support of your SSDI claim.
Bear in mind, though, a brief note from your doctor simply stating that you are disabled isn't likely to help much. What the administration needs from your doctor are specifics. So for example, they need to know how your doctor evaluates your ability to do things like sit, stand, walk, bend, stoop, perform certain dexterous hand movements, reach above, lift certain amounts, perform simple, routine tasks. Ideally, your doctor's notes would also include information about your overall strength, your hand grip strength, your range of motion and your reflexes. The details might be a bit different, depending on the type of disability you are claiming.
But here's the biggest problem you will face: Doctors are busy people. If they wrote one of these statements for every single one of their patients, that is probably all they would ever do.
One of the ways we try to streamline the process for doctors is by providing a residual functional capacity form (or RFC). You should not be surprised if your doctor charges you a fee to complete this form. Consider that her time is valuable, and the money you spend now is more than likely going to be worth it in the end. The administration gives a lot of weight to the opinion of a doctor who has treated you long-term because he or she can give the most detailed, longitudinal perspective of your impairments and progression.
If you are applying for disability benefits on the basis of a mental disability, you'll want to make sure that the doctor who is completing your RFC is someone who specializes in that area of medicine. That will make their opinion all the more valuable.
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One carefully-worded statement of support could be enough to sway Social Security administrators to give you the approval stamp. But a doctor who doesn't support you in this could end up being a big part of the reason your claim is denied.
Los Angeles Social Security Disability Attorney Vincent Howard of HOWARD LAW knows it's important to know where your doctor stands.
Keep in mind too that even if your doctor does support you, often, she may not be aware of what you need from her. You may not know either. That's why having a qualified disability attorney is so key to the whole process.
Our attorneys can also let you know when it might be time to change doctors, if yours is not supportive or cooperative. Of course,this is not a decision you want to make lightly or frequently - constantly moving from one doctor to the next could actually hurt your chances of a successful claim. A lack of much history will render your newest doctor's opinion virtually useless.
But if you stay on with a doctor who is not responsive to your SSDI application, you risk being sent to a doctor chosen by the Social Security Administration - and guess how their results tend to skew? Not in your favor.
For the most part, SSDI and SSI claims can be won (or lost) pretty much entirely on your medical records. This means you have to provide them with extensive and detailed records and medical notes. This would include everything from lab reports to x-rays to MRIs to treatment notes. Another key piece of evidence would be a statement from your doctor, advocating support of your SSDI claim.
Bear in mind, though, a brief note from your doctor simply stating that you are disabled isn't likely to help much. What the administration needs from your doctor are specifics. So for example, they need to know how your doctor evaluates your ability to do things like sit, stand, walk, bend, stoop, perform certain dexterous hand movements, reach above, lift certain amounts, perform simple, routine tasks. Ideally, your doctor's notes would also include information about your overall strength, your hand grip strength, your range of motion and your reflexes. The details might be a bit different, depending on the type of disability you are claiming.
But here's the biggest problem you will face: Doctors are busy people. If they wrote one of these statements for every single one of their patients, that is probably all they would ever do.
One of the ways we try to streamline the process for doctors is by providing a residual functional capacity form (or RFC). You should not be surprised if your doctor charges you a fee to complete this form. Consider that her time is valuable, and the money you spend now is more than likely going to be worth it in the end. The administration gives a lot of weight to the opinion of a doctor who has treated you long-term because he or she can give the most detailed, longitudinal perspective of your impairments and progression.
If you are applying for disability benefits on the basis of a mental disability, you'll want to make sure that the doctor who is completing your RFC is someone who specializes in that area of medicine. That will make their opinion all the more valuable.
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Austin PD crime-lab backlogs delaying cases for months
The Austin Statesman has a remarkable story ("Crime lab backlogs weighing down court system," Feb. 3) lamenting growing backlogs at the Austin PD crime lab, which are "causing unprecedented delays in the resolution of criminal cases, preventing some from going forward for at least six months and stressing an already bustling county judicial system." Reported Tony Plohetski:The number of cases awaiting testing has doubled in five years, and more than 1,100 samples in both felony and misdemeanor cases remain unanalyzed – a backlog that every judge in the county’s criminal courts deems unacceptable.Some cases involve relatively minor crimes from mid-2012 that now languish on court dockets. The problem is particularly acute for blood evidence in drunken driving cases, which is sitting on shelves an average of 200 days before it is assigned to an analyst, more than six times longer than three years ago.The backlog is partly the result of repeated decisions by the city of Austin not to add new scientists to the crime lab in its nine years of operation, despite requests from the police department and a growing reliance on forensic evidence to solve and prosecute crimes.Ironically, Hays County recently announced it would begin to use Austin's crime lab on a contract basis because of backlogs at DPS!Austin's failure to invest in its crime lab stems from the same illogic as their failure to invest in crime-scene investigators (the city fails to investigate 55-65% of home burglaries because they don't employ enough property-crime techs). Nearly every extra dollar available to the agency over the last decade has gone to hiring ever-more patrol officers and paying for extravagant raises agreed to in off-budget negotiations with the police union, which is the main source of recent city property tax increases.That said, this is also in part a self-inflicted wound: The biggest source of crime-lab backlogs turns out to be police department management decisions to ramp up their "no refusal" DWI blood-draw policies.Since 2008, the number of samples submitted to the lab has risen modestly overall — about 25 percent. But the request for certain types of testing, including blood in drunken driving cases, has gone from 440 in 2008 to 2,002 last year as the department has increasingly sought blood samples from suspects who refuse a breath test.Those cases are handled in the lab’s chemistry section, which also analyzes narcotic samples, but blood cases “are the most complicated, and the processing time is much longer,” said Ed Harris, the department’s chief of field support services, who oversees the lab. ...The longest wait time is the average of 200 days for blood samples, which have flooded into the lab in recent years, according to department statistics. The wait time for narcotic and DNA samples is 75 days, while fingerprint wait times are about 90 days.Luckily, Travis County is pretty good about issuing personal bonds in such situations; elsewhere those sorts of backlogs could leave a county jail bursting at the seams. Still, the story shows how, in the 21st century, state and local officials must invest in forensic labs as diligently as they do front-line police officers, the judiciary, and county jails, and a nascent storyline every budget season - at the state and local levels - will be the growing competition between these various law enforcement functions for increasingly scarce resources.See prior, related Grits posts:Hays County would save money eschewing 'free' DPS crime lab services, paying Austin 500% increase in DWI blood tests worsened DPS crime lab staffing shortagesWill new, 'anti-government' Lege invest in criminal justice system: Crime lab editionTexas crime lab capacity expanding slower than demandLaw enforcement coming to grips with new limits on DPS crime lab servicesDPS reaching limits of unsustainable crime lab model: Tells agencies to reduce DNA, drug testing requestsDNA testing dominates crime lab backlogs Texas crime labs ill-equipped to handle coming volume of 'touch DNA' casesUpward budget pressure at crime labsLarge backlogs for DPS forensics testingUsing DNA in nonviolent offenses would swamp crime labs Backlog of DNA cases complicates Houston crime lab's bias problems Houston fingerprint lab plagued with errors, two-year backlog Forensic backlogs force tough choices
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Proposed Changes In Massachusetts Wiretapping Statute
Legislators and law enforcement officials are pushing for a tougher Massachusetts wiretap law to crack down on gun violence, the Boston Globe reported January 28, 2013. A bill has been filed that would dramatically expand the scope of the law, which is presently limited to cases involving organized criminal activity, to cover drug and gun crimes, child pornography, money laundering and human trafficking. The law would also extend wiretap duration from 15 days to 30 days and would expand the definition of “wire communication.” Police and prosecutors claim that the law is necessary because they need more “muscle” and due to the fact that organized crime is “outdated.” Attorney General Martha Coakley referenced the Newtown tragedy in support of her position that the wiretap law needs to be changed.
There is a reason, clearly set forth in the preamble to G.L.c. 272, § 99 (the Massachusetts wiretap law) why such intrusive electronic surveillance is limited to cases involving organized crime: “[O]rganized crime carries on its activities through layers of insulation and behind a wall of secrecy… Normal investigative procedures are not effective in the investigation of illegal acts committed by organized crime.” Massachusetts courts have said that there are certain “signatures” of organized crime, such as discipline. In other words, organized crime is often sophisticated, whereas regular crime is usually not. This rationale, that normal investigative procedures do not work well in the investigation of organized crime, does not apply to cases involving “garden variety” criminal activity. This law should not be changed simply because police and prosecutors don’t want to do their jobs. The law currently provides that a warrantless interception violates G.L.c. 272, § 99 where the requisite organized crime connection is not shown. The law already encompasses a huge range of criminal activity, including possession and sale of drugs, provided that these types of crimes are connected with organized crime. Wiretapping may also violate article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment. Our courts have cautioned that wiretapping and other forms of electronic surveillance are a serious threat to privacy because this type of surveillance is “peculiarly adapted” to search of emotions and thoughts. The Supreme Judicial Court has held that electronic surveillance of conversations taking place in private homes, in the absence of evidence that the participants intended the conversations to be public, violates article 14, which provides more protection than the Fourth Amendment in some circumstances.
The current definition of “wire communication” is broad, covering any communication made by cable, wire, “or other like connection,” whether in whole or in part. The new law would, absurdly, re-define “wire communication” to include wireless communications.
Those who have been subject to a wiretapping may move to suppress on both statutory and constitutional grounds. The statutory suppression provision is G.L.c. 272, § 99P. Section 99Q also makes civil remedies available to those aggrieved by privacy violations not authorized by the statute.
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Levin: Keep criminal-justice reform ball rolling
The Texas Public Policy Foundation's Marc Levin had an op ed in the Austin Statesman titled "Lawmakers must continue criminal justice reforms." With his permission, I've reprinted the full piece below the jump.BY MARC LEVINThere’s plenty of good news on criminal justice in Texas, but now is not the time to stop the presses. Instead, Texas lawmakers must build on recent achievements that have enabled Texas to realize its lowest crime rate since 1973 and a double-digit percent drop in both the state’s crime and incarceration rates since 2005. By better aligning policies with research, policymakers can continue the progress in driving down the crime rate without being too tough on taxpayers.Building on recent successes requires understanding the factors that contributed to it. Two key budgetary strategies adopted in 2005 and 2007 enabled Texas to avoid building more than 17,000 new prison beds, which the Legislative Budget Board (LBB) had projected would be needed by 2012. Such beds would have cost $2 billion to build and operate over five years.The first strategy involved appropriating $55 million in 2005 for probation departments that agreed to seek a 10 percent reduction in the number of probationers returned to prison, and that agreed to implement graduated sanctions. Such sanctions involve imposing issuing swift, sure and commensurate measures (more required meetings, extended probation terms, electronic monitoring and weekends in jail, for example) for rules violations such as missed appointments, rather than letting them pile up and then revoking that probationer to prison. Most of the funding went toward reducing caseloads, which facilitated closer supervision and the consistent application of both sanctions and incentives. Participating probation departments have reduced revocations, avoiding $226 million in incarceration costs.The second strategy was the 2007 appropriation of $241 million for prison alternatives. This included more intermediate sanctions and substance abuse treatment beds, drug courts, and substance abuse and mental illness treatment slots. Capacity was also created to clear the backlog of parolees not being released because of waiting lists for in-prison treatment programs that must be completed as a condition of release, and for halfway houses (paroled inmates cannot be released without a valid home plan). The 2008-09 budget added about 7,000 beds, including treatment beds for diverting probationers and parolees from prison, halfway house beds and mental health pretrial diversion beds, as well as 3,000 outpatient drug treatment slots, all of which were maintained in subsequent budgets.Given that nearly all felonies in Texas can result in either probation or prison, the recent drop in nonviolent offenders directly sentenced to prison may reflect the confidence that judges, juries and prosecutors have in the effectiveness of probation. Also, probation and parole revocations together account for approximately half of the annual prison intakes, and both have declined over the last several years as supervision has been strengthened. Parole offices have expanded the use of graduated sanctions, implemented instant drug testing, and hired chaplains who connect willing parolees with local religious congregations. Thus, despite there being more parolees, the number of new crimes committed by parolees has declined 11.9 percent since 2007, contributing to a sharp reduction in parole revocations.The first step in sustaining and continuing these gains is to ensure that the upcoming budget prioritizes proven community corrections approaches that hold offenders accountable and put them on the right track at a fraction of the cost of prison. Consider that in Texas probation costs less than $3 a day, with half of that paid for by offender fees, while prison is more than $50 per day. Even if a more intensive community corrections approach like a problem-solving court or GPS is needed to safely supervise certain offenders, the cost is still a fifth of prison. Fortunately, the Texas prison population has declined from its high of nearly 156,000 just a few years ago to 151,191 as of the end of the 2012, some 4,384 fewer beds than the system’s operating capacity. Accordingly, legislators should budget for closing additional prisons and reinvest some of the savings in the proven approaches that have contributed to this surplus of beds and simultaneous drop in crime.Lawmakers can do even more in the next budget by implementing Senate Bill 1055, which was unanimously enacted last session. This measure authorizes counties to voluntarily enter into an agreement with the state to reduce prison commitments of low-level offenders whereby the community receives a share of the state’s savings on lower prison costs, partly based on the county’s performance in reducing probationers’ recidivism rate and increasing the share of probationers who are current on their victim restitution. The next budget should implement SB 1055 by reallocating to participating counties some of the savings from prison closures achieved through the implementation of the local commitment reduction plans described in the legislation. In 2010 — the first fiscal year of Texas’ Juvenile Commitment Reduction Program — juvenile commitments to state lockups fell 36 percent, saving taxpayers at least $114 million, while juvenile crime continued to decline. Senate Bill 1055 provides that counties can use the share of the state’s savings that they receive for community-based programs, which include problem-solving courts, specialized probation caseloads, electronic monitoring and short-term use of the county jail to promote compliance.Legislators should also establish a presumption of probation with mandatory treatment for first-time drug offenders who possessed less than 4 grams — about one-seventh of an ounce — of the outlawed substance. One version of this is Senate Bill 90. Those convicted of drug delivery are excluded, as are drug possession offenders who had a previous conviction for any other offense beyond a traffic violation.The judge would determine whether the offender would go to a residential facility, which could be the state’s six month secure Substance Abuse Felony Punishment Facilities (SAFPFs), or day treatment, or a combination of both. If “three hots and a cot” is tough on crime, is it not tough on crime to force a drug addict to be in a program where he is tested regularly and must attend treatment and cover the cost to the extent possible, hold a job, pay child support and face jail time for repeated failures to comply?Under this proposal, such an offender could still be initially imprisoned upon a documented judicial finding of danger to the community. Moreover, those who fail to comply face revocation to prison for up to 10 years. The LBB estimated this approach would save $500 million over five years, even considering the additional probation and drug treatment costs incurred.Policymakers must also overhaul the state jail system, which houses those with offenses such as possessing less than a gram of drugs, writing hot checks and prostitution. It is plagued by a 60 percent recidivism rate, significantly higher than the recidivism rate of prisons that hold more serious offenders. To achieve better results, the law should be amended to return to the original model where state jail time must be a condition of probation. Accordingly, instead of being discharged without supervision after serving an average of eight months, state jail inmates would go on probation, where they would report to an officer, take drug tests and be required to attend mental health and substance abuse treatment and hold a job, while also being eligible for resources that promote reintegration into society.Another priority is legislation allowing prosecutors to refer certain cases to victim-offender conferencing. Consider if an 8-year-old in your neighborhood stole something out of your garage. Rather than go through months of a protracted legal process, you as the victim could choose this restorative approach which typically involves the offender taking responsibility for his conduct, making an apology, providing monetary and/or service restitution and performing community service. The defendant must also choose conferencing, as he waives his right to trial and appeal. Some 89 percent agreements are met, but if not, the case is prosecuted. Research shows this approach increases restitution collections, enhances victim satisfaction and reduces recidivism, as offenders come to understand they did not just violate the words of a statute but hurt other individuals. It also conserves judicial, prosecutorial and indigent defense resources.Furthermore, lawmakers must continue recent progress in driving down both the juvenile crime rate and the number of youths in state lockups. This requires prioritizing funding for the Commitment Reduction Program through which counties have implemented evidence-based approaches that involve juvenile probation officers and treatment personnel coming into the home to strengthen the family’s capacity for providing discipline.Furthermore, it’s time to overhaul ineffective zero-tolerance policies that unnecessarily remove students from school and funnel many of them into the juvenile and criminal justice systems. Each year, hundreds of thousands of students are issued criminal citations and sent to municipal courts for such routine misbehavior as making “unreasonable noise,” even though such citations don’t improve behavior. Further, under zero-tolerance policies, a principal has no choice but to suspend a high school student with an empty beer can in his car within 300 feet of the campus. Policymakers must administer a dose of common sense and local discretion to remedy these flawed policies.Additionally, let’s rein in the number and scope of the state’s 1,700 criminal offenses, and avoid adding yet more superfluous crimes. Some 1,500 of these offenses are outside of the Penal Code where the traditional crimes are found. Most of these relate to ordinary business activities. For example, Texas has 11 felonies concerning the harvesting of oysters. In a January report, the LBB recommended that the Legislature create a sentencing commission that would regularly review the voluminous criminal laws to identify those that are unnecessary and ensure that penalties for those that are needed are commensurate with the relative gravity of the conduct. The recommendations of the commission, which would include key stakeholders such as judges, prosecutors, criminal defense lawyers and victims’ advocates, would then go to the Legislature. Unfortunately, without such a mechanism to regularly review a body of criminal laws too vast and complex to be comprehensively examined during the fast-moving legislative session, we will be stuck on auto-pilot in the grow-government mode as the Legislature adds an average of 39 new offenses each session and dozens more penalty enhancements without repealing or reining in any laws.We also recommend adoption of the rule of lenity. This approach to interpreting criminal laws specifies that, if it is unclear whether the conduct at issue is clearly prohibited, the benefit of the doubt goes to the defendant. This concept is consistent with the conservative emphasis on strictly interpreting the law as well as the traditional formulation that a crime consists of a guilty mind combined with a bad act. To have a guilty mind, or mens rea, a person must have had fair warning that their conduct was criminal. If a statute is unclear, it by definition does not provide that fair warning.These recommendations flow from the fundamental principles of limited government and personal responsibility and the need for policymakers to apply the same scrutiny to criminal laws and spending on corrections as other policy areas. Public safety is one of the few core roles of government, but let’s distinguish between those offenders we are afraid of and those we are simply mad at. Texas has made remarkable progress over the last several years in reducing both crime and incarceration, and there is plenty more to be done this session to take a few more bites out of crime and a few less dollars out of taxpayers.
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The Future Former Lawyer of Lindsay Lohan
Every lawyer wants his name in lights, right? We all crave billboards and bus stop signs and seeing our faces on the evening news at least once a week, right? Any attention is good attention, isn’t it? Why then aren’t lawyers throwing elbows to help out tabloid superstar Lindsay Lohan?
This blurb at the Superficial amusingly jokes about Lindsay Lohan’s newest lawyer’s performance and her reaction:
Within the first five minutes of representing her in court he hit on the judge then spent the rest of the time rubbing his lucky rabbit foot which even to someone as dumb as Lindsay Lohan, was a sure sign she’s going right the fuck to jail. So now she wants a new lawyer, but surprisingly there’s not one in Hollywood who will accept blowjobs for payment.
The author cites another article about how Lindsay Lohan is stunned she keeps being turned down by ...
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Maintaining Attorney-Client Relationship In Criminal Case
Lawyers and clients both must work hard at maintaining their professional releationship. In criminal cases, clients usually feel the same mental and emotional strain as a patient who is seriously ill. Especially in federal cases, where the stakes are so high or serious state cases such as murder, sexual offenses, or cyber crime, clients may [...]
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NYTimes Opinion: "Why Police Lie Under Oath"
NYTimes Opinion: Why Police Lie Under Oath by Michele Alexander:
THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”
But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.
That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. ...
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NYTimes: "Lawmakers Aim to Limit Drones and Safeguard Privacy"
NYTimes: Texas Lawmakers Aim to Limit Drones and Safeguard Privacy by Emily Ramshaw:
A drone, no bigger than a toy airplane, hovered north of the Texas Capitol, floating over the heads of lawmakers who were momentarily distracted from their morning meetings. Several of them gathered beneath it, faces tilted skyward, marveling over a pair of goggles that allowed them to watch live video of the craft’s panoramic bird’s-eye view.
But when the conversation turned to the reason for the demonstration, the tone shifted. Representative Lance Gooden, Republican of Terrell, said he was sponsoring legislation to prevent this futuristic technology — increasingly used by everyone from aviation hobbyists to law enforcement authorities — from capturing “indiscriminate surveillance.”
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Case o' The Week: Doe, a Discovery Dear - US v. John Doe, Affirmative Defenses, and Discovery
A visiting district judge on a three-judge panel rejects established Ninth precedent and shifts the burden of an affirmative defense onto the defendant. (Albeit, with a little help from the Supremes . . . .) United States v. John Doe, 2013 WL 363016 (9thCir. Jan. 31, 2013), decision available here.Players: Decision by DJ William Smith, joined by Judges Fernandez and Berzon. Hard-fought case (and important discovery win) by ED Cal AFPD Carolyn Wiggin.Facts: “John Doe,” a resident of Mexico, reached out to the FBI and tried to cooperate about drug cartels, to get his family to the States. Id. at *1. Meetings with an agent took place, though the agent disclaimed authorizing Doe to begin work. Id. at *2. At the same time, a Fresno police detective investigated a case that – through Doe – netted twelve pounds of meth and five kg of cocaine. Id. at *2. When arrested, Doe immediately told the Fresno detective that he was working for the FBI. Id. The agent confirmed Doe was being “developed” as an informant but was not currently working for the FBI. Id. Doe was charged federally. At trial he sought a “public authority” instruction that required the government to prove, beyond a reasonable doubt, that Doe did not believe he was acting as an informant. Id. at *3. Relying on the Supreme Court’s decision in Dixon v. United States, 548 U.S. 1 (2006), the district court denied the instruction. Doe was convicted. Id. at *3. Issue(s): In Dixon, the Supreme Court held that “Congress intended the [defendant] to bear the burden of proving the defense of duress by a preponderance of the evidence.” Id. at *7 (citation omitted) (emphasis added). “The question of whether Dixon applied to affirmative defenses other than duress is a matter of first impression in the Ninth Circuit.” Id. at *7. Held: “[L]ike Dixon's duress defense, Doe's common-law affirmative defense of public authority must be proven by a preponderance of the evidence . . . .The district court was therefore correct in applying Dixon to Doe's public authority defense and requiring Doe, and not the government, to bear the burden of proof.” Id. at *8 (internal quotations and citations omitted).Of Note: Doe does notstand for a “per se rule that the public authority defense must always be proven by the defendant by a preponderance of the evidence.” Id.at *9. The Ninth emphasizes that the question is statute- and case-specific. Here, the drug statutes at issue had a “knowingly” mens rea element that the public authority defense could not negate. The outcome might well be different for a specific intent crime. (Though this might be small solace – precious few federal crimes still have specific intent mens rea requirements, and how would public authority work in, for example, a federal assault case that requires specific intent? Maybe “attempt” crimes, with their specific intent mens rea, still give some hope for a Doe distinction). How to Use: Something’s fishy with this agent. Phone records reveal that Doe called him on the eve of this big drug transaction, and Doe testified that he was working on the sale to help the FBI, yet the agent “didn’t remember” the phone conversation at trial. Before trial, Doe pushed for discovery of all information provided by Doe to the FBI, and all records of communications between Doe and the agent. Id.at *3. The district court denied the request as overbroad. Id. In a terrific discovery decision, the Ninth flatly reverses this ruling. Id. at *12. The Court explains that the discovery requests weren’t overbroad, counters that Doe couldn’t be expected to be more specific than he was in his request, and emphasizes (a la Stever) that evidence is relevant if it has “anytendency to make the existence” of a material fact more or less probable.” Id. at *13. Though not the primary holding, Doe’s discovery discussion is a hidden jewel worthy of heavy citation in discovery litigation. For Further Reading: “Prosecutorial practices have contributed to disparities in federal sentencing.” So says the Sentencing Commission in its new Booker report. For a useful summary of the sure-to-be controversial tome, see Prof. Berman’s interesting post here.Image of “Meet John Doe” movie poster from http://upload.wikimedia.org/wikipedia/commons/thumb/3/38/Poster_-_Meet_John_Doe_01.jpg/220px-Poster_-_Meet_John_Doe_01.jpgSteven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org.
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"Why Police Lie Under Oath" and deeper challenges involving criminal justice metrics
The title of this post is the partially drawn from the headline of this opinion piece in today's New York Times, which was authored by my Ohio State College of Law colleague Michelle Alexander. Here is how it starts: Thousands...
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DUI Case Dropped For Lack of Timely Testing
When a New England state congressman was arrested in Connecticut for DUI and possession of marijuana, it effectively ended his political career. ![coldbeerglass.jpg]()
However, our Fort Lauderdale DUI lawyers understand that errors by the arresting officer have resulted in the defendant no longer facing criminal charges.
According to news reports, the officer failed to conduct the urine test in a timely manner and admitted to "possibly embellishing" the result of the field sobriety tests - further proof that such tests are not a solid measurement of a person's intoxication level. As such, they are subject to intense scrutiny by defense lawyers with relative success.
This case was set for trial, when a judge ruled a urine test administered more than two hours after the arrest would not be admissible in court - all but decimating the state's case. Prosecutors decided to drop the DUI charge. The marijuana charge had already been dropped when the former representative agreed to undergo a drug counseling and treatment program.
Although this case involves a Rhode Island congressman in a Connecticut town, the basic principals are entirely relevant here in South Florida.
The case started back in the spring of 2011. The representative was stopped at a DUI checkpoint. The officer who stopped him indicated that the driver smelled of alcohol - and later marijuana - and that his speech was slurred and his eyes were glassed over.
The representative underwent three field sobriety tests - and reportedly failed each of them. The officer also found a small marijuana pipe in the congressman's pocket.
But despite the officer's description of the defendant, he passed a breathalyzer test, registering a 0.05 percent blood alcohol content - well below the 0.08 percent legal limit. The urine test, as well, revealed a blood alcohol concentration of under 0.08 percent (at 0.07 percent). However, that test also showed he had THC in his system - the active ingredient in marijuana. The officer concluded that the combination of the two meant that the lawmaker was intoxicated.
The congressman would later say he did not smoke any marijuana that day, though he had previously admitted to using marijuana to treat pain stemming from his pancreatitis. Medical marijuana is legal in his home state of Rhode Island.
And regardless, presence of marijuana in the system at the time of testing does not equal intoxication because unlike alcohol, the drug stays in your system long after the intoxicating effects have diminished.
While one might think that a delayed urine test might actually serve to help most DUI defendants, as alcohol is known to quickly dissipate from the system, this is actually not the case. Evidence has shown that intoxication levels may actually spike for a time after you stop drinking. So you may get in the car being legally sober, but when an officer takes a urine sample three hours later, your intoxication level may be higher than when you got behind the wheel. That's why that time limit is critical.
Any of these points could have been effectively wielded by the defense. But in the end, it was the officer's own error in not administering the urine test within the required two-hour window (as well as his diminishing value as a witness for having "embellished" official reports) that turned out to be the undoing of this case.
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However, our Fort Lauderdale DUI lawyers understand that errors by the arresting officer have resulted in the defendant no longer facing criminal charges.
According to news reports, the officer failed to conduct the urine test in a timely manner and admitted to "possibly embellishing" the result of the field sobriety tests - further proof that such tests are not a solid measurement of a person's intoxication level. As such, they are subject to intense scrutiny by defense lawyers with relative success.
This case was set for trial, when a judge ruled a urine test administered more than two hours after the arrest would not be admissible in court - all but decimating the state's case. Prosecutors decided to drop the DUI charge. The marijuana charge had already been dropped when the former representative agreed to undergo a drug counseling and treatment program.
Although this case involves a Rhode Island congressman in a Connecticut town, the basic principals are entirely relevant here in South Florida.
The case started back in the spring of 2011. The representative was stopped at a DUI checkpoint. The officer who stopped him indicated that the driver smelled of alcohol - and later marijuana - and that his speech was slurred and his eyes were glassed over.
The representative underwent three field sobriety tests - and reportedly failed each of them. The officer also found a small marijuana pipe in the congressman's pocket.
But despite the officer's description of the defendant, he passed a breathalyzer test, registering a 0.05 percent blood alcohol content - well below the 0.08 percent legal limit. The urine test, as well, revealed a blood alcohol concentration of under 0.08 percent (at 0.07 percent). However, that test also showed he had THC in his system - the active ingredient in marijuana. The officer concluded that the combination of the two meant that the lawmaker was intoxicated.
The congressman would later say he did not smoke any marijuana that day, though he had previously admitted to using marijuana to treat pain stemming from his pancreatitis. Medical marijuana is legal in his home state of Rhode Island.
And regardless, presence of marijuana in the system at the time of testing does not equal intoxication because unlike alcohol, the drug stays in your system long after the intoxicating effects have diminished.
While one might think that a delayed urine test might actually serve to help most DUI defendants, as alcohol is known to quickly dissipate from the system, this is actually not the case. Evidence has shown that intoxication levels may actually spike for a time after you stop drinking. So you may get in the car being legally sober, but when an officer takes a urine sample three hours later, your intoxication level may be higher than when you got behind the wheel. That's why that time limit is critical.
Any of these points could have been effectively wielded by the defense. But in the end, it was the officer's own error in not administering the urine test within the required two-hour window (as well as his diminishing value as a witness for having "embellished" official reports) that turned out to be the undoing of this case.
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Circumstantial Proof for a NY DWI Arrest: Recent Appellate Decision Favorable to Prosecutors
Every year New York DWI attorneys and DUI lawyers find themselves representing clients accused of drunk driving and Vehicle and Traffic Law 1192 crimes that are re-defined by new criminal statutes or legal decisions. For example, Aggravated DWI in New York State is a crime that enhances penalties and did not exist years ago. Further, while portable "brathalyzer" tests were often not admissible at trial years ago, many courts are allowing prosecutors from New York City and Westchester County to municipalities and jurisdictions in Western New York and Upstate to introduce the field test BAC results with proper foundation.
One of the areas of law that always seems to expand with renewed analysis by local, county and appellate courts concerns the "operation" or "operating" terminology in VTL 1192 arrests. First, courts often address whether one must be actually driving to be operating (one does not) and second, if a defendant is not seen operating the vehicle how prosecutors can establish a drunk driving or driving while intoxicated crime circumstantially. A case right on point, and a very recent appellate decision, People v. Shaffer, 943 NYS2d 672 [3rd Dept. 2012], examined these issues. In Shaffer, a State Trooper observed the defendant sitting on his motorcycle. Although the motorcycle was not running, the defendant was wearing a helmet and facing the wrong way down a one way street. Ultimately arresting the defendant for violating VTL 1192.2 and VTL 1192.3, the Appellate Court found that there was both probable cause to arrest the defendant and it was of nominal consequence that the officers did not actually observe the defendant driving or operating the bike.
Testimony at trial revealed, as mentioned above, that the defendant sat upon his motorcycle facing the wrong way, helmet on his head, kick stand up and keys in the ignition. Although the defendant's motorcycle was not running, the defendant admitted to driving it moments before. More specifically, he stated he travelled about fifty yards down the one way road (the correct direct), realized he had gone the wrong way and turned around to figure things out. When taking into consideration that the officers observed the "standard" indicia of intoxication - watery and blood shot eyes, slurred speech and the smell of alcohol - along with the fact that the defendant was astride his motorcycle with the key in the ignition and kickstand up, admitted to driving and failed field sobriety tests, probable cause was certainly in place to arrest the defendant. The greater (or at least equally important) question was whether this evidence, if credible, was enough to prove the case beyond a reasonable doubt. Simply, the answer here was yes. Even without direct knowledge of operation, the circumstantial evidence was very strong and by itself can form the basis of a DWI or DUI conviction.
While the Appellate Court did not address the circumstantial evidence in great detail, there are some interesting things to think about. Would the outcome have been different if the defendant did not admit to riding the motorcycle? What if the key was not in the ignition or the defendant sat next to the bike? I have not seen the trial minutes, but did the prosecutor inquire as to whether the motorcycle was registered to the defendant, other people were around or the engine was throwing off any heat as if it had just been driven? All of this circumstantial evidence could be used to bolster or attack the DWI case in terms of "operation."
I think about each and every time I draft a blog entry on New York DWI crimes and New York DUI laws, I state the same thing. VTL 1192 crimes are as potentially deadly as they are avoidable. Nobody likes to hear it from their mother or their criminal defense attorney, but the best defense to a DWI arrest is to just not drive while intoxicated. If, however, you are accused of DUI - whether it is based in fact and evidence, a jump to a conclusion or the product of an illegal stop by the police - you have a right to defense yourself and identify and implement the best defense. Educate yourself on the law, consult with your attorney and begin the defense process to protect your DMV driving privileges and otherwise clean criminal record.
To learn about New York Refusal Hearings, Hardship Hearings, DWI Felonies, DUI misdemeanors and the collateral consequences of a New York drunk driving arrest, follow any of the links to the general information page for New York DWI laws where you will find all relevant and pertinent content including other blog entries and reviews of specific statutes and procedures.
Established by two former Manhattan prosecutors who trained and served in the DWI Unit, Crotty Saland PC is a New York criminal defense firm representing clients in all DUI and intoxicated driving offenses throughout the New York City area.
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Defenders, critics debate effectiveness of sex offender registry
The real problems with the registry are, everyones belief it will solve future sex offenses. It WILL NOT! Bouchard's belief of high recidivism is not reality and hasn't been, many studies have...
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Beyonce's Live Version of the Star Stangled Banner
Here's Beyonce at a news conference the other day, singing the Star Spangled Banner live. Just amazing. I'm really looking forward to her half-time performance today.
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Because They Can
An article in yesterday’s New York Times caught my attention. It wasn’t so much because of the topic: the pervasiveness of police officers who lie. I’ve written about that a number of times myself, most notably in my blog article, “Testilying.” No, it was something else. I’ve always thought that I knew just how bad [...]
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DOJ Brief Tries to Keep N.J. Sports Gaming Law Out of Bounds
On Friday, February 1, 2013, the U.S. Department of Justice filed a brief in the U.S. District Court for the District of New Jersey defending the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA), the hotly contested federal law that prohibits sports betting in most states. New Jersey is seeking to have the [...]
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Related StoriesDOJ Plans to Intervene in N.J. Sports-Betting CaseCourt Hears Argument on N.J. Law Permitting Sports BettingCourt Finds State Ban on Sex Offenders’ Use of Social Media Tramples Speech Rights
Related StoriesDOJ Plans to Intervene in N.J. Sports-Betting CaseCourt Hears Argument on N.J. Law Permitting Sports BettingCourt Finds State Ban on Sex Offenders’ Use of Social Media Tramples Speech Rights
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MI - Defenders, critics debate effectiveness of sex offender registry
Original Article02/02/2013By Liz Shepard
Michigan residents have access to the names, addresses and offenses of convicted sex offenders at their fingertips.
You can search within a mile of your house for them. You can search an entire ZIP code. Smart phone apps will show you a map of sex offenders, your location marked with a green dot, surrounded by menacing looking red dots marking the addresses on the registry.
Michigan required sex offenders to register in the state in 1994 to meet a federal mandate. Legislation sponsored by Michael Bouchard, now Oakland County’s sheriff, made the registry public in 1996.
“I wrote the law because of the high recidivism rate of sex offenders,” Bouchard said in an email. “The average pedophile has over 100 victims in their so-called career. For those reasons alone, the public should have easy access to what is already public record."- And that is the problem, people continue to ignore the fact that study after study shows that ex-sex offenders have a very low recidivism rate, but politicians continue to ignore those facts because they don't help their career. The registry does nothing to "prevent" crime or "protect" anybody, it's a false sense of security. Even the Department of Justice says recidivism is low.
“Their crimes, their release and their location,” Bouchard wrote. “This allows women and families to better protect themselves by being informed. Maybe it's taking a different route to school or jogging or skipping a house or block on Halloween. To those that say, ‘When can the sex offender move on with their life?’ I say the day their victims can forget.”- This is why police or other uninformed people should not be making laws, especially police, who are biased in the first place and think most people who are in jail or have been accused of a crime, are criminals who will continue to repeat their "crimes!" They think everyone is a criminal! Maybe we should have a POLICE BRUTALITY registry so all these egomaniacs can have their own personal online registry? Then see how much they like it when their names, addresses, photos are put online.
There are 519 sex offenders registered in St. Clair County and 138 in Sanilac County.
While many say the registry is a useful tool, others argue it might not be the right approach.JJ Prescott, a law professor at the University of Michigan, researched the topic of private versus public directories for a paper published in 2011.
Prescott said he found public registries are a deterrent to potential first-time offenders — but once an offender is on the list, it does little or nothing to keep him or her from committing new crimes.
“They can’t find jobs, can’t build families, can’t live near friends and family, they are pariahs,” Prescott said. “What is the threat? What do you threaten someone with who is in prison on their own dime?”
Francie Giordano, founder of Michigan Citizens for Justice, said her son was on the registry for just a few months and it was like living a nightmare.Read the entire article here© 2006-2013 | Sex Offender Issues
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