On Monday April 14, authorities in California claimed that they had “dismantled” a drug trafficking ring that smuggled cocaine and methamphetamines from Mexico for distribution to New York, Arkansas, Illinois, and other states. According to a news report at U-T San Diego, the 11 individuals who were in a group known as the Magana Drug […]
California Drug Trafficking Ring Busted – 11 People Arrested
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Tampa Bay Lightning Forward Charged with DUI, Cocaine Possession
On Saturday morning April 12, Ryan Malone, Tampa Bay Lightning forward, was arrested on suspicion of driving under the influence. In the process of his arrest, police discovered cocaine in Malone’s pants pocket, according to a recent article at USA Today. At approximately 3 a.m., Tampa police witnessed a Chevrolet Suburban make a left-hand turn […]
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2014 Colorado Criminal Case Sets Standards For Continuance Of Trial For New Lawyer
By H. Michael Steinberg - Colorado Criminal Defense Lawyer for Criminal Trials
On April 7, 2014, the Colorado State Supreme Court carefully and logically set out the standards - the tests - to be applied by Colorado State Judges in deciding whether or not to grant a continuance of a criminal trial for a Defendant to fire his present lawyer and retain a new lawyer.
In People v. Brown, 2014 CO 25 (April 7, 2014), Justice Brian Boatright held that a trial judge must apply a "balancing test" to a Defendant's Sixth Amendment right to seek and obtain a continuance of a criminal trial.
In the Brown decision - the Colorado Supreme balanced the Sixth Amendment constitutional right to his or her counsel of choice against the public's interest in the fairness and efficiency of the judicial system.
The test itself in determining whether to allow a defendant to change counsel will turn on the application of "a multi-factor balancing test."
Brief Facts Of the Brown Case
Although Brown had received a change in lawyers several times before and this time it was only twelve days before the fourth trial date, the Defendant's newly retained counsel filed an entry of appearance and requested a continuance.
The Court said:
"(This case has been "continued several times; we've got a number of witnesses subpoenaed; [the public defender] is ready to proceed; and, you know, I have no doubt that [the public defender] will do a very competent job representing Mr. Brown."
The defendant proceeded to trial with the PD, was convicted and appealed the denial of his right to choose his lawyer.
At The Colorado Court Of Appeals Level - The Court reversed Brown's conviction finding the trial court failed to adequately consider Brown's right to counsel of choice.
The Court of Appeals laid out these 4 considerations: (1) whether the defendant has an improper motive such as delaying trial;
(2) whether the defendant's chosen counsel available to take and try the case;
(3) whether granting a continuance impacts the court's docket;
and
(4) whether granting the continuance prejudices the prosecution beyond simply causing an inconvenience.
The Colorado Supreme Court Expands The List of Tests a Trial Judge Must Now Apply To "Balance"A Defendant's Sixth Amendment Right To Seek And Obtain A Continuance Of A Criminal Trial.
The Colorado Supreme Court reversed finding the lower Colorado Court of Appeal and added several more factors to what the higher court considered to be tests that were too restrictive and too mechanical.
The Following Tests Are Now The Law In Colorado Instead a trial court should consider:
1. the defendant's actions surrounding the request and apparent motive for making the request;
2. the availability of chosen counsel;
3. the length of continuance necessary to accommodate chosen counsel;
4. the potential prejudice of a delay to the prosecution beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial system and from the date of the offense;
7. the number of continuances already granted in the case;
8. the timing of the request to continue;
9. the impact of the continuance on the court's docket;
10. the victim's position, if the victims' rights act applies; and
11. any other case-specific factors necessitating or weighing against further delay.
No SINGLE FACTOR is enough - (dispositive) and the persuasive weight of any ONE FACTOR will vary depending on the specific facts at issue in the case. Trial judges are now forced to make SPECIFIC FINDINGS that would permit a higher court to review the trial court's decision.
This is now the law in Colorado and will be applied by all Colorado Criminal Defense Lawyers in the cases where they are asked to enter and defend a case already set for trial. - H. Michael Steinberg
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Stein on Inefficient Evidence
Alex Stein (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Inefficient Evidence (Alabama Law Review, Vol. 66, 2015) on SSRN. Here is the abstract: Why set up evidentiary rules rather than allow factfinders to make decisions by...
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Litton on Miller v. Alabama, Sentencing Law and Juvenile Crime Policy
Paul Litton (University of Missouri School of Law) has posted Symposium Foreword: Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy (Missouri Law Review, Vol. 78, No. 4, Fall 2013) on SSRN. Here...
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Friday Night Open Thread
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Sheppard on Double Jeopardy and Mandating Partial Verdicts in "Acquit First" Cases
James Robert Sheppard III has posted Double Jeopardy Blues: Why in Light of Blueford v. Arkansas States Should Mandate Partial Verdicts in 'Acquit First' Cases (Mississippi Law Journal, Vol. 83, Forthcoming) on SSRN. Here is the abstract: Prior to Blueford...
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Cohan's False Portrayal of Williamson
Well beyond his odd arguments, William D. Cohan has distinguished himself through a highly unusual editorial strategy. In many cases relying solely on the word of a convicted liar (often presented second- or even third-hand), Cohan allowed Mike Nifong to launch unsubstantiated attacks against virtually anyone who challenged the rogue district attorney at any point during the lacrosse case.It’s difficult to infer a benevolent motive to Cohan’s strategy. It’s also hard to determine how Scribner’s editorial and legal staff allowed Cohan to get away with this approach. The first article to appear on the book—by Joe Neff—exposed the problem: relying solely on Nifong’s word, Cohan claimed that Attorney General Roy Cooper “blindsided” his senior prosecutors when he declared the falsely accused students innocent. Unlike Cohan, Neff actually spoke to Jim Coman, who dismissed the presentation of events as a “figments of [Nifong’s] imagination.”Another key figure in the case targeted by Nifong and Cohan has now refuted the Cohan presentation. Lane Williamson, who presided over the Disciplinary Hearing Commission in Nifong’s case, was a powerhouse, handling the case with unchallenged intellectual and moral authority. (UPI ends with a majestic quote from Williamson.) Williamson also produced the most dramatic moment of the entire proceeding, when he asked Nifong about his then-current view of the case. (In the clip above, Nifong made no mention of his bizarre Japanese-rape-club example that Cohan floats as his current theory of the case in the book. Cohan did not seem to ask him when, after his testimony above, he embraced this novel interpretation of the facts of the case.)It would seem as if the outcome of the Bar hearing placed Williamson on Nifong’s enemies list. And given Cohan’s uncritical acceptance of virtually anything Nifong told him, Williamson became a target of Cohan as well. On p. 559, Nifong-through-Cohan challenged Williamson’s integrity and impartiality, claiming that “at least part of Lane Williamson’s sentencing memo was done the night before I testified. At least part of that had been written. I could’ve said anything. I could’ve called Jesus Christ as a witness, and [h]e could have testified and ascended into heaven, and they would’ve said, ‘Well, obviously you can’t make anything of that testimony. That doesn’t mean anything. You’re obviously guilty.’”For reasons that he has never explained regarding multiple figures in the book, Cohan produced this passage without attempting to contact Williamson. Unsurprisingly, given its reliance on the word of a convicted liar, the book’s portrayal of Williamson is untrue. In a comment (verified by me), Williamson noted,I have never commented on this or any other blog about the Nifong case, but feel compelled to do so now. I did not prejudge Mike Nifong: rather, I evaluated the evidence presented at the hearing to reach my conclusions. I wrote no part of my concluding remarks prior to the end of the hearing: those were extemporaneous except for a few notes that I made during the panel’s deliberation following closing arguments on the punishment phase of the hearing.Mr. Cohan has never contacted me. [emphasis added]As with Jim Coman, then, so too with Lane Williamson: (1) Cohan uncritically accepted a less-than-plausible assertion from Nifong; and (2) despite Nifong’s credibility problems, didn’t even try to check his protagonist’s veracity with the person that Nifong had targeted.That said, the wild Cohan/Nifong claim should give everyone an opportunity to return to one of the high points of the case. I have embedded Williamson’s remarks below, or, you can watch the entire Williamson closing in a single file, in higher quality, at the WRAL site.
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Quizduell: In welchem Bundesland gibt es die Todesstrafe?
Eine erheiternde Frage hatte ich heute früh im Quizduell zu beantworten: Laut der Verfassung welchen Bundeslandes ist es noch möglich die Todesstrafe zu verhängen, obwohl diese aufgrund des Deutschen Grundgesetzes nicht angewendet wird? Hätten Sie’s gewusst? Richtig, es ist Hessen. Es ist ein vielzitiertes juristisches Kuriosum, dass nach Art. 21 Abs. 1 Satz 2 der […]
Original: Quizduell: In welchem Bundesland gibt es die Todesstrafe?
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The No-Fly Secrets Revealed
For a case that could have, should have, disappeared with a swift oops and click of the delete button, it has reached a conclusion with the unfortunately unsatisfying result of no one being saved and a government so utterly impotent, incompetent, and unworthy as to warrant a brief chuckle. If only it wasn’t our government. […]
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Incentives Revisited: Which Lying Liars Do You Favor?
In response to the question of why, Nebraska Senior District Court Judge Richard Kopf provided a candid and detailed answer. His answer consists of nine points, delivered with his usual aplomb and sense of humor, and with remarkable honesty. This is noted because it’s easy to offer pat answers, the ones we fall back on regularly […]
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Can an Unauthorized Driver of a Rental Car Challenge an Illegal Serch in Florida
In Florida, the police are generally not allowed to search a suspect's vehicle unless the driver or owner gives consent to search, the police have probable cause to believe there is evidence of criminal activity inside or there is an arrest of an occupant of the vehicle and there is a danger that evidence may be compromised. The police cannot stop a driver and then search the vehicle based on any assumptions or anonymous tips that there may be illegal drugs or other evidence in the vehicle.
When the police conduct an illegal search, the defendant's remedy is to have the criminal defense lawyer file a motion to suppress to have any evidence obtained as a result of the illegal search thrown out of court. However, the defendant must have what is called standing in order to have the criminal defense attorney properly file the motion. Standing is another word for the legal right to challenge the alleged illegal search. If the driver who was arrested also owned the vehicle, or had authorization from the owner to drive the vehicle, that defendant would likely have standing to challenge an illegal search. Likewise, if a person rented the vehicle, the renter would have standing to challenge an illegal search. But what about a person driving a rental car that was not listed as an authorized driver?
In a recent drug case near Jacksonville, Florida, a police officer stopped the defendant for traffic violations. The officer asked for consent to search the vehicle, but the driver refused. The officer noted the driver was driving a rental car and asked to see the rental car agreement. The police officer saw that the agreement mentioned only one authorized driver, and the person driving was not him. The police officer ultimately searched the vehicle and found marijuana and marijuana paraphernalia inside. The driver was arrested for possession of marijuana with intent to sell.
This appeared to be an illegal search so the criminal defense lawyer filed a motion to suppress the marijuana evidence. Even though the motion was valid as it challenged the questionable search, the court denied the motion because the driver did not have standing to challenge the illegal search. The rule in Florida is that an unauthorized driver of a rental car cannot challenge an illegal search in court. By unauthorized, the law means that the rental agency must have specifically authorized the driver on the rental agreement. If the person who was authorized to drive the rental car allowed another person to drive the car, that other driver is not considered an authorized driver if he/she is not listed on the rental agreement.
To put it another way, if you are driving a rental car and you are not listed as an authorized driver on the rental agreement, the police can basically pull you over and search the car without complying with any right to privacy protections in the constitution.
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Pot Tourism
As expected, Colorado's legalization of marijuana is producing an influx of tourists. College student Levy Pongi, 19, traveled with friends from Wyoming to Denver to try it. He jumped to his death from a hotel balcony. AP reports: DENVER (AP)...
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Criminal Contempt in Bankruptcy Courts
In 2013, there were 1,032,326 bankruptcies filed nationwide, a marked decreased from the number of such filings the previous three years: 2012—1,185,238; 2011—1,379,658; 2010—1,561,225. According to the American Bankruptcy Institute… read more →
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Victim Restitution in Child Pornography Cases Still In Flux
The road of Hades is sometimes paved with good intentions. This is so with the case of Luis A. Montalvo-Cruz (“Cruz”) whose appeal to the First Circuit Court of Appeals… read more →
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Granny Doesn’t Have Authority over the Shoebox: Searches of Private Spaces in Shared Home
The People for the American Way has said the United States Court of Appeals for the District of Columbia is “dominated by right wing ideologues” who have the “last word”… read more →
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SUPREME COURT CLARIFIES REQUIREMENTS FOR MOTIONS TO SUPPRESS IN OHIO DUI/OV CASES
Two days ago, the Ohio Supreme Court issued a decision clarifying how specific a motion to suppress must be for the defendant to receive an evidentiary hearing on the motion. In State v. Codeluppi (2014), the Court concluded: "[A] highly detailed pleading of the facts and law is not required to satisfy the Shindler notice requirements and to trigger the right to a hearing on the motion to suppress." This conclusion affirmed the Court's decision from a decade ago in State v. Shindler (1994). The Codeluppi decision hopefully will end uncertainty about the specificity required for motions to suppress in Ohio DUI/OVI cases.
Ohio has a system for drug/alcohol testing and field sobriety testing in DUI/OVI cases. First, government agencies develop methods for alcohol/drug testing and field sobriety testing. Second, those government agencies issue regulations and manuals to ensure the tests produce reliable results. Third, law enforcement is trained to implement the testing methods according to the regulations and manuals.
Ohio law has a framework for uniformly litigating issues regarding the admissibility of evidence in DUI/OVI cases. Rather than addressing the science behind alcohol/drug testing and field sobriety testing in every individual DUI/OVI case, the litigation addresses whether law enforcement complied with the regulations, the manuals, and the Constitution. The prosecution must prove drug/alcohol tests and field sobriety tests were administered in substantial compliance with the regulations and manuals, and the prosecution must also prove the detention and arrest of the defendant were lawful. If the prosecution does not prove these things, evidence is excluded from trial.
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Las Vegas Casino Marker Lawyer
Las Vegas is one of the few cities in the country with laws in place regarding casino markers. Casinos use markers as a way to help gamblers and players keep playing. When you only have a certain amount of cash on you, the casino will extend you a line of credit. You must pay off […]
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The Undeniable Scent Of Police Misconduct
The prestigious Cato Institute, with its National Police Misconduct Statistics and Report Project (NPMSRP), tracks police misconduct on a daily and annual basis. And there is a lot of misconduct… read more →
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